Evans and Tax Practitioners Board (Taxation)

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Evans and Tax Practitioners Board (Taxation) [2019] AATA 1408 (19 June 2019)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2019/2915

Re:Neil Evans

APPLICANT

AndTax Practitioners Board

RESPONDENT

DECISION

Tribunal:Chris Furnell, Senior Member

Date:19 June 2019

Place:Melbourne

The Tribunal refuses the applicant's request under s 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of the decision to which this review proceeding relates.

.........[sgd]...............................................................

Chris Furnell, Senior Member

Catchwords  

PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – tax practitioners board – prospects of success – consequences for applicant – consequences for respondent – public interest - whether substantive application would be rendered nugatory if stay order were not granted - application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)
Crimes Act 1958 (Vic)
Tax Agent Services Act 2009 (Cth)
Tax Agents Services Regulations 2009 (Cth)

Cases

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Beckett and Tax Practitioner’s Board [2018] AATA 1860
Cheng Li and Tax Practitioners Board [2013] AATA 669
Clyne v New South Wales Bar Association (1960) 104 CLR 186
G J Brown & Co Pty Ltd and Tax Practitioners Board [2016] AATA 740
Gould and Tax Practitioners Board [2019] AATA 1056
Dadwal and Tax Practitioners Board [2018] AATA 2878
Hill and Tax Practitioners Board (Taxation) [2019] AATA 756
Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127
Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Practitioners Conduct Board v Nicholson [2006] SASC 21
Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719
Re Mahaffy and Tax Practitioners Board [2014] AATA 17
Medical Board of Australia v Patel [2015] QCAT 133
Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Re Snook and Civil Aviation Safety Authority (2008) 109 ALD 122
Stasos v Tax Agents Board (1990) 21 ALD 437
The Law Society of SA v Rodda [2002] SASC 274
Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Zarfati and Australian Securities and Investments Commission [2008] AATA 989

REASONS FOR DECISION

Chris Furnell, Senior Member

19 June 2019

  1. On 18 April 2019, the respondent Board decided to terminate Mr Evans registration as a tax (financial) adviser with effect from 31 May 2019.

  2. Mr Evans was notified of the Board’s decision in a letter dated 2 May 2019.

  3. On 27 May 2019, Mr Evans applied to the Tribunal for review of that decision.

  4. In addition, Mr Evans also requested that the Tribunal make an order staying the Board’s decision pending the hearing and determination of his application for review of that decision.[1]

    [1] On 28 May 2019 the Tribunal made an…

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Details
Case
[2019] AATA 1408
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr. Evans for a stay of a decision made by the Tax Practitioners Board, heard by Senior Member Chris Furnell of the Administrative Appeals Tribunal. The dispute arose from the Board's decision, and Mr. Evans sought to prevent its immediate effect pending a substantive review of that decision. The Tribunal was required to consider the prospects of success of the substantive application, the consequences for both the applicant and the respondent should a stay be granted or refused, and the public interest.

The primary legal issue before the Tribunal was whether to grant Mr. Evans' application for a stay of the Tax Practitioners Board's decision. This involved a two-stage process: first, considering the prospects of success and the consequences for the parties and the public interest; and second, weighing these competing interests to determine if a stay was appropriate. A key consideration within this was whether the substantive review application would be rendered nugatory if the stay were not granted.

Senior Member Furnell's reasoning centred on the overarching scheme and purpose of the relevant legislation, which is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. The Tribunal adopted the outline of the scheme provided in a previous decision, which detailed the registration requirements for tax agents, including qualifications, experience, professional indemnity insurance, and the "fit and proper" person test. The Tribunal noted that the protection of the public interest is fundamental to this scheme and is the object to which the registration regime is directed. While acknowledging that the consequences for the Board if the stay were granted did not strongly support refusal, the Tribunal ultimately concluded that the interests of the public, as protected by the Act's scheme, ought to prevail over the interests of Mr. Evans and his associates.

On balance, the Tribunal found that the competing interests were such as to suggest the refusal of the stay order request. The interests of the public, being paramount to the legislative scheme, outweighed the interests of the applicant. Therefore, the application for a stay was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Hence, the consideration concerning the consequences for the Board should the stay order request be granted is not such as to support refusal of the request.Conclusion on public interest Notwithstanding my conclusion with respect to the consideration concerning consequences for the Board should Mr Evans’ stay order request be granted, overall, the interests of the public are such as to suggest that the request ought be refused.RESOLVING COMPETING INTERESTS I now come to the second stage of the two stage process I said earlier I would adopt in considering the interests of persons who may be affected by the Tribunal’s review of the Board’s decision. This second stage entails weighing competing interests in order to determine whether they are, on balance, such as to support either the grant or refusal of Mr Evans’ request for a stay order. Central to this process of resolving competing interests is the scheme embodied in the Act. A review of that scheme suggests that, in the event of competing interests and absent particular circumstances warranting the attribution of significant weight to the interests of a stay order applicant and his or her associates, the interests of the public ought prevail. Protection of the public interest is fundamental to the Act. As mentioned previously, the object of the Act is expressed in terms protective of the public; being to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. More specifically, protection of the public interest is the object to which the Act’s registration regime is directed.[48][48] Hill and Tax Practitioners Board [2019] AATA 756 at [59]. See also GJ Brown and Tax Practitioners Board [2016] AATA 740 at [92]. Here we are dealing with competing interests. The interests of the public are such as to suggest that Mr Evans’ request for a stay order ought be refused while the interests of Mr Evans and his associates suggest otherwise, but not strongly. Given the view I have taken as to the scheme of the Act, the former interests prevail. Hence, on balance, the interests of those persons who may be affected by the Tribunal’s review of the Board’s decision are such as to suggest refusal of the stay order request. I turn now to the other consideration that must be taken into account in considering that request.SUBSTANTIVE REVIEW APPLICATION STILL EFFECTIVE OR RENDERED NUGATORY? The second mandatory consideration concerns the appropriateness of the requested stay order for the purpose of securing the effectiveness of the hearing and determination of Mr Evans’ substantive review application. In this context, I will address one of what I have characterised as the other considerations, being the issue of whether, absent the requested stay order, the substantive application for review would be rendered nugatory. On behalf of Mr Evans, it is submitted that the substantive review application would, indeed, be rendered nugatory (and, presumably, thereby ineffective) absent the stay order.

Ratio Decidendi

Legal Principle Established

Hence, both stages of the process require a consideration of the scheme of the Act, including those aspects of the scheme of relevance to the exercise of the Board’s registration termination power. ACT’S SCHEME AND REGISTRATION TERMINATION POWER As for that scheme I adopt, with respect, the outline recently provided by Senior Member Taylor SC in Hill and Tax Practitioners Board.[14] [14] Hill and Tax Practitioners Board (Taxation) [2019] AATA 756. In that decision it was (at [9]-[15]) stated that:[9] The basic purpose of the TASA provisions is to ensure that tax agent services are provided “in accordance with appropriate standards of professional and ethical conduct”:– see TASA s 2–5. (The expression “tax agent services” generally includes providing advice and representation services relating to Commonwealth taxation matters: see TASA s 90–5.) The TASA registration regime is a fundamental means of effectuating that purpose. Unless they do so as a practising lawyer, a person must be registered to be able to charge for providing “tax agent services”:- see TASA ss 2–10 & 50–5.[10] The registration eligibility criteria for an individual tax agent include appropriate qualifications, experience and professional indemnity insurance. An individual registration applicant must also satisfy the Board that they are “fit and proper”:-see TASA s 20–5[11] A corporate applicant for tax agent registration must satisfy the Board about similar criteria. Each of its directors must be a “fit and proper person”. The corporation must not have incurred a conviction for fraud, dishonesty or a “serious taxation offence” within the preceding five years. It must also have both (i) sufficient registered tax agents to appropriately to provide (and supervise the provision of) competent tax agent services and, (ii) appropriate professional indemnity insurance:- TASA ss 20–5(3).[12] An otherwise competent individual applicant (and any director of a corporate applicant) will likely be regarded as “fit and proper” if they are of “good fame, integrity and character”:- TASA s 20–15(a). The considerations that may inform such an assessment are not prescriptively defined:- see TASA s 20–15(b); Toohey v Tax Agents Board of Victoria [2008] FCA 1796; (2008) 106 ALD 506 at [3]. They must include, but the assessment is neither limited to nor explicitly determined by, circumstances where, in the preceding five years, the person has(a) been convicted, or otherwise sanctioned, for a “serious taxation offence” or certain other kinds of tax related misconduct:-TASA ss 20–15(b)(i) & 20–45(a)(c)&(d)(b) been convicted of any offences involving fraud or dishonesty:- TASA ss 20–15(b)(i) & 20–45(b)(c) served, or has been sentenced to, a term of imprisonment:- TASA ss 20–15(b)(i) & 20–45(f); 20–15(b)(iii)(d) had the status of an undischarged bankrupt:- TASA ss 20–15(b)(ii).[13] An applicant who satisfies the relevant eligibility requirements, must be registered:- TASA s 20–25. The minimum registration period is three years:- TASA s 20–25(4). Registration is renewable in response to a timely (or otherwise permitted) application. Where an agent has submitted a proper renewal application, their registration is taken to continue until the application has been determined by the Board:- TASA s 20–50.[14] As a registered person, a tax agent is subject to various obligations. They include(a) compliance with any registration conditions imposed by the Board(b) compliance with the statutory Code of Professional Conduct:-TASA s 20–25(5) & 30–10. (The Code sets out basic requirements of honesty, competence, lawfulness, client best interest and professional indemnity insurance.)(c) notifying the Board “whenever” they cease to meet any of registration requirements:-TASA s 30–35(1)(a)(d) notifying the Board if (amongst other things) they have either been convicted of dishonesty or sentenced to imprisonment:-TASA s 30–35(1)(b) & 20–45.[15] The Board can terminate a tax agent’s registration in various circumstances. One circumstance is where the agent ceases to meet a registration requirement:-TASA ss 30–15, 40–5(1)(b). Other circumstances include (i) breach of a registration condition, (ii) failure to comply with the Code, (iii) conviction for a dishonesty offence or, (iv) incurring a sentence of imprisonment:–TASA ss 30–15, 40–5(1)(a) & 20–45(b),(f).