Gylman and Tax Practitioners Board

[2015] AATA 794

Gylman and Tax Practitioners Board [2015] AATA 794 (12 October 2015)

Division	TAXATION & COMMERCIAL DIVISION
File Number(s)	2015/4917
Re	Lysa Gylman
APPLICANT
And	Tax Practitioners Board
RESPONDENT

DECISION

Tribunal	Senior Member P W Taylor SC
Date	12 October 2015
Place	Sydney

Ms Gylman’s application for an order, under s 41(2) of the Administrative Appeals Tribunal Act1975, in relation to the Tax Practitioners Board’s decision of 13 August 2015 is refused.

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

Senior Member P W Taylor SC

CATCHWORDS

PRACTICE AND PROCEDURE – stay application – considerations relevant to determining application for stay – decision to refuse renewal of registration – stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 41

Superannuation Industry (Supervision) Act 1993 (Cth) ss 34, 62, 126A

Tax Agent Services Act 2009 (Cth) ss 2-5, 2-10, 20-5, 20-15, 20-25, 20-30, 20-35, 20-50, 30-10, 30-15, 30-20, 30-25, 30-30, 40-5, 50-5, 70-5, 70-10, 90-5

CASES

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130

Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559

Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114

REASONS FOR DECISION

Senior Member P W Taylor SC

12 October 2015

1. Ms Gylman was registered as a tax agent on 1 March 2010. On 16 February 2015 she applied to renew her registration. On 13 August 2015 the Tax Practitioners Board refused her application. The Board was not satisfied that Ms Gylman satisfied the “fit and proper” eligibility requirement in s 20-5(1)(a) of the Tax Agent Services Act 2009 (“TASA”).

2. The Board’s dissatisfaction about Ms Gylman’s fitness derived from prior decisions of the Australian Taxation Office. One of those decisions, made in October 2012, determined that Ms Gylman was a disqualified person for the purposes of Part 15 of the Superannuation Industry (Supervision) Act 1993 (“SIS Act”). The decision related to Ms Gylman’s conduct as a trustee, and auditor, of a self managed superannuation fund (“The Trustee for the Friendly Fund”). A delegate of the Commissioner of Taxation found that (i) Ms Gilman had contravened the SIS Act, and (ii) was not a fit and proper person to be a “trustee, investment manager or custodian”: see SIS Act ss 126A(1)(a) and (3). The other ATO decisions were made in May 2013, following an audit of Ms Gylman’s tax returns for the 2008 – 2010 financial years. In those decisions the Commissioner determined that Ms Gylman had a cumulative tax shortfall of $377,814. The Commissioner imposed penalties for the shortfall, on the basis that Ms Gylman had intentionally disregarded taxation laws. The penalties totalled about $283,361.

3. The ATO’s October 2012 and May 2013 decisions were, to a substantial extent, based on the same underlying facts.  These basically involved two matters: – (i) a series of deposits to, and withdrawals from, the Friendly Fund, and (ii) an absence of evidence that the fund had ever invested in any legitimate assets or derived any meaningful profits.  The series of deposits occurred between July 2007 and November 2011.  In that period something approximating $1.6 million was deposited to the Friendly Fund’s bank account, as a result of 209 transactions, including employer contributions and rollovers from persons previously unrelated to the Friendly Fund.  In approximately the same period the total fund withdrawals were $1.52 million.  Approximately $996,877 of those withdrawals were reflected in 89 separate deposits into Ms Gylman’s personal bank account.  Those deposits (or at least some of them) appear to have provided the basis for the ATO’s May 2013 assessment decisions.

4. The ATO’s position in relation to Ms Gylman’s disqualification was that, as one of two trustees, she had operated the Friendly Fund in a way that facilitated the improper early release of superannuation funds.  The ATO considered this kind of activity contravened both the required standards of conduct of a superannuation trustee (SIS Act s 34) and a trustee’s obligation to ensure that a superannuation fund was maintained solely for at least one of its core purposes (SIS Act s 62).  (Those purposes essentially involve providing benefits relating to a member’s retirement or death.)

5. In blunt terms, the ATO considered that Ms Gylman (and her fellow person trustee) had “facilitated the illegal early release of a high percentage of the Fund’s total assets” and had conducted “an artificial scheme that was orchestrated and promoted … to undermine the legislation”.  The ATO noted that neither Ms Gylman or her co-trustee had provided any documentation establishing the reasons for the payments made into her personal bank account.

6. Based on the ATO decisions, and the findings underlying them, the Board’s principal findings were that Ms Gylman (i) had breached her fiduciary duties as a trustee, in transferring trust funds (amounting to nearly $1 million) into her personal bank account, and (ii) could not be regarded as fit and proper, having regard to her SIS Act disqualification and the findings on which it was based.

   TAX AGENT REGISTRATION – LEGISLATIVE PROVISIONS

7. A person must be registered to be able to charge for providing “tax agent services”: see Tax Agent Services Act 2009 ss 2-10, 50-5 and 70-5. (The expression “tax agent service” is broadly defined. It generally includes providing advice and representation services relating to Commonwealth taxation matters: see TASA s 90-5.) An applicant cannot be registered unless they satisfy the relevant eligibility requirements, and must be registered if they do satisfy them: TASA s 20-25. The registration eligibility criteria for an individual applicant include appropriate qualifications, experience and professional indemnity insurance. As well an individual registration applicant must satisfy the Tax Practitioners Board that they are “fit and proper”: see TASA s 20-5. The Board must take into account an applicant’s “good fame, integrity and character” before being satisfied of person’s fitness: TASA s 20-15. A successful applicant’s registration period is that specified by the Board in an appropriate notice: see TASA ss 20-30(1) and 20-35.

8. A registered agent must comply with the Code of Professional Conduct. The code requires an agent, amongst other things, to act with integrity, comply with tax laws in relation to their personal affairs, and act lawfully in the best interests of clients: TASA s 30-10. An agent’s registration may be suspended or terminated for failure to comply with the Code: TASA ss 30-15, 30-20, 30-25 and 30-30; or if the agent ceases to satisfy the registration requirements: TASA s 40-5(1)(b).

9. An agent may apply for renewal of their registration: see TASA s 20-50. Once an agent has made a timely renewal application, their registration is taken to continue until the Board determines the application: TASA s 20-50(2). A registration decision by the Board is reviewable by the Tribunal: TASA s 70-10.

   MS GYLMAN’S CONTENTIONS

10. The Tax Practitioners Board’s decision to refuse Ms Gylman’s renewal application was made on 13 August 2015 and conveyed to her in a notice dated 3 September 2015.  She began the current review proceedings on 22 September 2015.  On 22 September 2015 she applied for a stay of the Board’s decision.  On 23 September 2015, DP Hack SC made an interim order staying the decision.

11. Ms Gylman has provided a number of documents in support of her stay application, and more generally in response to the Board’s decision.  Those documents are as follows:

    (a)18 September 2015:  a letter enclosing:

    (i)character and competence testimonials from three people who have known her professionally;

    (ii)a three page “summary of objection” relating to her claim to be released from the tax debt arising from the 2013 assessment decisions.  In this document Ms Gylman asserts (a) that “monies” had in fact been invested in Lebanon by her co-trustee, (b) that the co-trustee had provided the ATO with an acknowledgement to that effect, (c) that the ATO had wrongly regarded her as having a personal emotional involvement with her co-trustee, and (d) that the ATO had wrongly regarded cash payments from Ms Gylman’s bank account as personal payments to her co-trustee, rather than transfers of funds for investment on behalf of the fund.

    (b)22 September 2015: a formal application for review – basically complaining that the Board had merely acted on the basis of the ATO decisions without conducting its own investigation.

    (c)22 September 2015:  a formal stay application – including a copy of the ATO’s October 2012 disqualification decision, complaining that the Board had acted on the basis of the ATO decisions, and asserting that she had initiated objection proceedings that had not been completed by the ATO.

    (d)28 September 2015: a single page letter (apparently in response to a direction made by DP Hack SC in the course of a telephone directions hearing on 23 September 2015) listing various grounds supporting her stay application.  Seven of those grounds relate to her financial circumstances and medical condition, without providing any specific details.  Two of the grounds assert her general competence.  One ground asserts client inconvenience and the risk of major disruption to her business.  Another ground expresses concern that loss of registration would prevent her recovering payment for services she had previously provided.  The remaining ground basically repeats her request for a full reconsideration of her circumstances.

    (e)5 October 2015: a 19 paragraph response to the Board’s submissions opposing her stay application.  In that response Ms Gylman (i) asserted that she had established arguable grounds to challenge the Board’s decision, (ii) said she had disputed the ATO decisions, (iii) complained about the adequacy of the ATO’s investigations, (iv) complained that the Board had simply relied on the ATO findings, and (v) complained that the Board’s submissions misstated her financial position in asserting that she had no significant income from her activities as a taxation agent.

12. Ms Gylman does not challenge the basic facts of the deposits to, and the withdrawals from, the Friendly Fund.  Neither does she contest the deposits to her personal account.  However, she appears to assert that all of the fund withdrawals were either for investment or permissible compassionate purposes.  This appearance comes partly from various paragraphs of the ATO’s October 2012 disqualification decision.  Those paragraphs summarise explanations Ms Gylman provided either in a written response dated 22 March 2012, or during the course of an interview on 20 July 2012.  The appearance also comes, although less clearly, from Ms Gylman’s claim that her co-trustee has acknowledged the use of trust funds for investment purposes in Lebanon. 

    THE BOARD’S CONTENTIONS

13. The Board submitted that Ms Gylman had not provided any persuasive evidence that the loss of her registration would itself involve her in any significant financial hardship.  In support of that proposition the Board relied on information contained in a 7 May 2015 “Application for release” that Ms Gylman had submitted to the ATO.  In that document she had not included any income from her activities as a taxation agent.  She had explicitly stated that her tax business income hardly covered the related expenses.

14. The Board also submitted that the ATO decisions, and more particularly the disqualification decision, involved misconduct findings of a serious kind.  The Board contended that the misconduct the ATO had found against Ms Gylman was not compatible with satisfaction that she was a fit and proper person.  The Board’s ultimate position was that, in the absence of even potential grounds to question the ATO’s primary factual findings, it would be inappropriate to stay the August 2015 refusal decision.

15. In relation to the absence of a factual basis for challenging the ATO’s 2012 and 2013 decisions, the Board’s written submissions pointed out that Ms Gylman had not provided any specific evidence of having applied for a review of those decisions.  In its oral submissions the Board provided the Tribunal with the result of its enquiries to the ATO in relation to the review of the decisions.  That information was to the following effect:

    (a)In relation to the 2012 disqualification decision:

    (i)October / November 2012:  the ATO agreed to an extension of time for Ms Gylman to seek a reconsideration of the disqualification decision

    (ii)29 November 2012:  Ms Gylman formally applied for reconsideration

    (iii)13 December 2012:  the ATO sought further information from Ms Gylman

    (iv)18 January 2013:  the ATO sought further information from Ms Gylman

    (v)7 February 2013:  Ms Gylman formally withdrew her reconsideration request, on the basis that she was unable to provide the additional information requested by the ATO.

    (b)In relation to the 2013 audit and assessment decisions:

    (i)27 May 2013:  the ATO issued amended assessments

    (ii)23 July 2013:  Ms Gylman lodged objections to the assessment decisions

    (iii)July – September 2013:  the ATO sought further information from Ms Gylman

    (iv)10 September 2013:  Ms Gylman formally withdrew her objections, again on the basis that she was unable to provide the additional information requested by the ATO.

    ABSENCE OF EFFECTIVE CHALLENGE TO THE ATO DECISIONS

16. Ms Gylman disputed that she had at any time withdrawn her opposition to the ATO decisions.  But her dispute was expressed in the most general terms.  She provided no information that contradicted the details reported by the Board.  In addition, the Board’s 3 September 2015 statement of reasons recorded the fact that in November 2014 it had received a referral from the ATO relating to the 2012 and 2013 decisions.  It is, in my view, rather unlikely that the ATO would have made that referral, or at least that it would have made the referral in unqualified terms, if reconsideration or review proceedings were still current at that time.

17. For the three reasons outlined in the two preceding paragraphs (the Board’s reported chronology, the generality of Ms Gylman’s dispute, and the fact of the ATO’s 2014 referral) I do not accept that Ms Gylman has previously sought to dispute, in any effective way, the factual basis for the ATO’s 2012 and 2013 decisions.  She has certainly not provided, in support of her stay application, any evidence that provides a reason to doubt the accuracy of the ATO’s findings.

    CLIENT INCONVENIENCE

18. Ms Gylman has not provided any significant evidence that the non-renewal of her registration would give rise to material inconvenience or hardship to her clients.  The three character testimonials accompanying her 18 September 2015 letter all describe her as “semi-retired” and “part time self-employed”.  And despite her complaint that the Board’s submissions had taken the financial information contained in her 7 May 2005 “Application for release” out of context, she informed the Tribunal orally that she had few clients and that (as a result of recent damage to her office equipment and supplies) she had not in fact been able to work effectively at all.  Consistent with all that information, Ms Gylman provided no details at all of her current client list, work in progress, recent business income or anticipated income.

19. After the stay hearing on 7 October 2015, at the conclusion of which the Tribunal’s decision was reserved, Ms Gylman complained about the conduct of the hearing and requested the opportunity to respond by providing further information relating to her clients. The stay hearing was resumed (by telephone) on 8 October 2015.  On that occasion Ms Gylman claimed that she had not appreciated the potential significance of specific client evidence.  She sought an adjournment for the purpose of providing current information about her clients and income.  The Board opposed any such adjournment and the introduction of any further such information.  The Board contended that Ms Gylman had previously been put on notice of the importance of adducing evidence about her current client activities, had appreciated the potential significance of that information, had indicated during the hearing conducted on 7 October 2015 that she had few current clients, and ought not be given any further opportunity to address the issue.  I substantially agreed with the Board’s submissions, and refused Ms Gylman’s request for an adjournment for the purpose of adducing additional client related information.

20. After I had dealt with the Applicant's first request to provide further evidence, she sent the Tribunal a further email.  In this email she set out what she claimed were relevant details of her current practice.

21. I did not initially read the Applicant’s email.  Instead I invited (i) the Applicant to indicate what she contended it established - having regard to her oral evidence that she had few current clients, and (ii) the Respondent to indicate whether it opposed the additional material being taken into account.  The Applicant did not respond to my invitation.  The Respondent opposed the Tribunal taking the additional information into account, and foreshadowed that it would seek to cross examine Ms Gylman about some of the information contained in her email, should the Tribunal allow the additional information into evidence.  The Respondent also submitted, perhaps a little inconsistently, that the additional information did not materially alter the evidence that had already been put before the Tribunal.

22. In the light of the Respondent’s position, and in the absence of any response by the Applicant to my invitation, I then read the Applicant's email.  It seems to reveal four principal matters:

    (a)The Applicant has some kind of client sharing or supervising relationship with another person.

    (b)That other person appears to have primary responsibility for the majority of the clients, and the Applicant claims to have only 75 clients.

    (c)The Applicant’s 75 clients fall into four categories (none of which she has quantified):- (i) those waiting assessment, (ii) those allegedly delayed by ATO processing procedures , (iii) those who are overseas, and (iv) those who have not provided her with required information.

    (d)The Applicant’s tax agent’s business income (at least from her own clients) appears to be less than $10,000.  After allowing for depreciation, the business has been trading at a loss.

23. I agree with the Respondent's submission that this information does not materially add to the information the Applicant previously put to the Tribunal.  In those circumstances, whilst I propose to take it into account, I will deal with the current matter without undertaking any further hearing.  I have already given directions for the expedited hearing of the substantive relief application.  Having regard to those directions, and the efforts that both parties will have to devote to compliance with them, in preparation for the review hearing, I do not consider that it is either desirable, or appropriate, to undertake any further examination of the currently available material relating to potential client inconvenience and financial hardship.

    FINANCIAL HARDSHIP

24. The facts that Ms Gylman has few current clients, and has not recently generated any significant net income from her activities as a tax agent, does not mean that the continuing loss of her registration status might not involve material financial hardship.  It appears (from her own assertions) that she has previously been able at least to cover her business expenses.  Some of those business expenses may be fixed costs that she cannot readily avoid.  In addition, to the extent that her current lack of business income is attributable to her recent personal and equipment difficulties, the loss of her registration will deprive her of the prospect of an immediate improvement in her financial circumstances.  I accept that such a deprivation is a matter of potential significance to Ms Gylman.

1. However, I am not satisfied that Ms Gylman has demonstrated that she has generated any significant income (either gross or net) from her recent activities as a tax agent.  I am also not satisfied that she has demonstrated that there is a real and significant prospect that her financial circumstances would be likely to alter materially, in the immediate future, if I was to accede to her stay application.

   PROSPECTS OF SUCCESS

2. The Board accepts that a stay application of the present kind need generally only satisfy the requirement of demonstrating an apparently arguable basis for the review of its decision.  But the Board contends that Ms Gylman has failed to identify any arguable basis for her review application.  It points out that Ms Gylman broadly accepts the facts of (i) the significant deposits to, and withdrawals from, the Friendly Fund, and (ii) the substantial deposits from the Fund to her own personal bank account.

3. The Board’s general scepticism of the potential merits of Ms Gylman’s review application is, in my view, well placed.  I am of that view for the following reasons:

   (a)I accept, for the purposes of this application, the information (as reported by the Board) that Ms Gylman effectively abandoned her previous attempts to have the ATO review its 2012 and 2013 decisions.  I also accept that she did so because she was not able to provide the kind of specific additional information that the ATO had sought.  The most significant aspects of that inability, as it seems to me, is that she is presently unable to dispute (i) the ATO’s finding (as recorded in paragraphs 18 and 27 of the 2012 disqualification decision) that the Friendly Fund had no significant investment assets or income, or (ii) the ATO’s finding (recorded in paragraph 53 of the disqualification decision) that she has provided no information or documentation to support the reasons for the transfers of fund money to her personal bank account.

   (b)Ms Gylman’s previously expressed justification for the use of her own personal bank account, in preference to the Fund bank account, (namely that it avoided withdrawal fees) strains credulity.  It strains credulity partly because, unless the hypothesised fees were substantial (a matter which the evidence did not establish and which I doubt) they would not provide sufficient justification, to a fit and proper trustee, for holding trust funds in a personal bank account.  It also strains credulity because the ATO findings suggest that there was in fact a total of $1.5 million withdrawn, comprising at least 89 transactions, in which funds were transferred from the Fund bank account into Ms Gylman’s personal bank account.  The amount and number of the withdrawals from the Fund bank account suggest a substantial and regular use of that account and strongly incline me against accepting Ms Gylman’s previously proffered explanation for the additional use of her personal bank account in accepting transfers from the Fund bank account.

   (c)Ms Gylman’s general assertion that all the withdrawals from the Friendly Fund were either compassionate payments or investments is an unpersuasive generality.  Nothing in any of the information she relied upon conveyed the impression that she had any real knowledge or understanding of any specific investments.  Indeed, the information she provided to the ATO in the conversation on 20 July 2012 (as recorded in paragraph 25 of the October 2012 disqualification decision) was merely that her co trustee had “invested … in properties in Lebanon … that’s what he told me”.  If that statement was the full extent of the information that Ms Gylman had when she paid trust funds into her co-trustee’s personal bank account, then (i) it is not at all probative of the fact that any such investments were actually made, and (ii) her conduct in acquiescing in such poorly understood and detailed “investment” transactions would itself call into question both her competence and her fitness.

4. Despite her inability to demonstrate any specific basis for disputing the ATO’s 2012 disqualification decision, Ms Gylman emphasised that the Board had specifically accepted that she met all of the relevant competency and qualification eligibility requirements for registration. She also emphasised that the Board’s lack of satisfaction about her fitness was solely related to criticism of her conduct as a trustee of the Friendly Fund. Implicit in her emphasis was the proposition that there were significant differences between her role as a trustee, and her role as a registered tax agent. (The most significant of those differences is, of course, that a registered tax agent would not necessarily have custody of, or indeed control over, client moneys. Furthermore, and despite the apparent contemplation in the Code of Professional Conduct – see TASA s 30-10(3), a tax agent would typically not carry out any role as either a trustee or a custodian.) Ms Gylman synthesised this aspect of her stay argument by putting to the Tribunal a rhetorical question – to the effect “What risk is there that I would cheat clients”.

5. I accept that there are differences between the role of a registered tax agent and those of an individual acting as a trustee or custodian of a superannuation fund. But the fact remains that one of the basic eligibility requirements for registration as a tax agent is positive satisfaction that an applicant is a “fit and proper person”. Furthermore, a determination that a person is “fit and proper” can only be made after having regard to the question whether the person is “of good fame, integrity and character”. And that question must address issues that are not confined to aspects of the person’s conduct as a tax agent: see TASA s 20-15. As the Board itself correctly indicated (in paragraph 13 of its 3 September 2015 reasons) the serious nature of the findings made by the ATO in its 2012 and 2013 decisions, is difficult to reconcile with satisfaction that a person who has engaged in such conduct is relevantly “fit and proper” for registration as a tax agent – at least in the absence of an apparently arguable basis for challenging the primary facts on which the findings were based.

   THE TRIBUNAL’S “STAY POWER”

6. Section 41 of the Administrative Appeals Tribunal Act 1975 confers a stay power in general terms.  The three principal aspects of the power are that the Tribunal (i) must take into account the interests of “any persons who may be affected by the review”, (ii) can only make orders that it considers “desirable”, and (iii) may make orders only for the purpose of “securing the effectiveness of the hearing and determination of the application for review”.  That latter purposive limitation must however be applied with due regard to the Tribunal’s general obligation to conduct its proceedings “with as little formality and technicality, and with as much expedition” as are consistent with any relevant legislative requirement and “proper consideration of the matters before the Tribunal”:  see AAT Act s 33(1)(b).  In the case of interlocutory applications (of which a stay application is an example) the Tribunal’s obligation to act expeditiously may assume particular importance:  see Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559 at [34].

7. These aspects of the stay power have been regarded as permitting the Tribunal to take into account:

   (a)the risk that the primary decision might have an irreversible practical effect, and thus render the statutory review entitlement illusory;

   (b)the nature and purpose of the primary decision maker’s powers and functions, especially where they required regard to the public interest:  see especially Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 at [50]-[56];

   (c)the practical impact of the primary decision on the review applicant (including consideration of any delay between the primary decision and the stay application, and any delay likely to occur before the hearing of the substantive application);

   (d)the applicant’s prospects of success in the review proceedings:  see Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114 at [4] – [14].

8. In the present matter, there is nothing to suggest that the Board’s decision is likely to have irreversible practical consequences, and that the refusal of a stay request would preclude the Tribunal from effective exercise of its review function.  Furthermore, for the reasons I have previously stated (in dealing with Ms Gylman’s claims of client inconvenience and financial hardship) the limited evidence Ms Gylman provided does not satisfy me that refusal of the stay application would, of itself, have a material adverse practical impact on either her or her clients.

9. In expressing the latter view, I acknowledge Ms Gylman’s apprehension that refusal of her stay application would put at risk the prospect of her receiving payment for work she has already undertaken.  Part of her apprehension may have been misplaced, because the cessation of her registration would not, as a matter of law, prevent her from recovering payment for work she had previously completed.  But part of her apprehension was also that clients who learnt of her loss of registration might nevertheless unjustifiably refuse to pay for completed work.  Perhaps included in her concern is an apprehension that some current clients might take the view that she is only entitled to payment where she actually takes their matters to completion.

10. Leaving aside her belated and unsuccessful request to adjourn the hearing of the stay application, Ms Gylman made no attempt to quantify either the number of clients, or the amount of money, potentially involved in her apprehensions about the risk of non-payment.  In the absence of specific information, and her acknowledgement that she has few current clients, I do not regard it as appropriate to make even a limited stay order for the purpose of addressing her potential difficulties with current uncompleted matters.  However, whilst I in no sense encourage any further application, I do not exclude the possibility of making such an order, if the Applicant is able subsequently to demonstrate a proper basis for a limited stay – by, for example, providing specific information detailing particular clients and the reasons why the interim preservation of her tax agent’s status would be a matter of significance to them.

11. In relation to the nature and purpose of the Board’s decision making power it is clear, in my view, that the primary purpose of the registration function is the protection of the public interest in securing the lawful and proper provision of tax agent services: see TASA s 2-5. The legislative eligibility criteria for registration include positive satisfaction of an applicant’s fitness, after taking into account their “good fame, integrity and character”. The Board has the primary responsibility for assessing an applicant’s fitness, and it has reached a concluded view of Ms Gylman’s contemporary unfitness, for the reasons expressed in its 3 September 2015 notification. I regard that determination as a consideration tending against acceding to Ms Gylman’s current stay application: see Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114 at [10]. Its actual significance depends, of course, on Ms Gylman’s apparent prospects of success in challenging either factual findings made by the Board, or its evaluation of the significance of the findings made by the ATO.

12. In relation to Ms Gylman’s apparent prospects of success in the review proceedings, I cannot express, and do not intend to convey, any concluded view.  The material currently available (from the Board’s reasons and the material provided by Ms Gylman) is very limited.  It lacks the specific detail that would have to be evaluated before any properly informed conclusion could be expressed.  However, the material does include considered findings of misconduct by the ATO, no influential factual basis (as distinct from Ms Gylman’s various and vague assertions) for questioning the accuracy of those findings, and some information that Ms Gylman has previously disavowed her capacity to dispute them.  In those circumstances I am not currently satisfied that Ms Gylman has demonstrated any basis for anticipating that she has meaningful prospects of success in the current proceedings to review the Board’s decision.

    CONCLUSION

13. For the reasons set out above, I refuse Ms Gylman’s application to stay the Board’s decision to refuse to renew her TASA registration as a tax agent.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC

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

Associate

Dated 12 October 2015

Dates of hearing	7 and 8 October 2015
Applicant	In person
Advocate for the Respondent	Mr J Matheson and Ms L Lu, Tax Practitioners Board