Jayaretnam and Tax Practitioners Board - [2016] AATA 421

Jayaretnam and Tax Practitioners Board [2016] AATA 421 (24 June 2016)

Division

TAXATION & COMMERCIAL DIVISION

File Number(s)

2015/5505

Re

Devarajan Jayaretnam

APPLICANT

And

Tax Practitioners Board

RESPONDENT

Decision

Tribunal
Mr P W Taylor SC, Senior Member

Date 24 June 2016

Place Sydney
The Board’s decision of 10 September 2015 is affirmed.

............................[sgd]............................................
Mr P W Taylor SC, Senior Member
Catchwords
TAX AGENTS – tax practitioners board – registration as a tax agent – whether applicant satisfied relevant experience criteria – decision under review affirmed
Legislation
Tax Agent Services Act 2009 ss 20-25, 90-5
Tax Agent Services Regulations 2009 r 8, items 201 & 207 of Schedule 2
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member

Mr Jayaretnam is a former fellow of the Chartered Institute of Management Accountants (London) and has been a fellow of the Australian Society of Certified Practising Accountants for over 20 years. In various employment capacities he has held senior accounting roles in Sri Lanka, New Guinea and Australia. From March 1995 to June 2012 he was employed by the University of Sydney as a finance manager.
Mr Jayaretnam has twice applied, so far unsuccessfully, for registration as a tax agent. Each application has been rejected by the Board, most recently in its September 2015 decision, because the Board did not accept that Mr Jayaretnam satisfied the ‘relevant experience’ qualification to permit his registration. That is the only reason for his applications being refused. The Board accepts that, apart from this single issue of experience, Mr Jayaretnam is otherwise eligible for registration.
The legislative framework
The Board must grant a registration application where the applicant satisfies the eligibility criteria - and must otherwise refuse an application: Tax Agent Services Act 2009 (“TASA”) s 20-25(1).
One of the criteria for registration eligibility is the Board’s satisfaction that the applicant meets the requirements prescribed by the Tax Agent Services Regulations 2009 (“TASR”): see TASA s 20-5(1)(b).
The prescribed, and cumulative, eligibility requirements are set out in TASR (in reg 8 and Schedule 2 Part 2 Item 201). They are:-
(a)a tertiary qualification in accountancy: Item 201(a);
(b)successful completion of an approved course in commercial law: Item 201(b);
(c)successful completion of an approved course in Australian taxation law: Item 201(c); and
(d)engagement in “the equivalent of 12 months full-time, relevant experience” in the 5 years preceding the application: Item 201(d).
The concept of “relevant experience” is defined - in TASR Schedule 2 Part 2 Item 207. The part of the definition that applies to Mr Jayaretnam’s circumstances is in the following terms:
207 For Division 1, relevant experience means work by an individual:
…
(c) under the supervision and control of a tax agent registered under the Act; ….
in the course of which the individual’s work has included substantial involvement in 1 or more of the types of tax agent services described in section 90-5 of the Act, or substantial involvement in a particular area of taxation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 421
Decision Date: 24 June 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr. Jayaretnam for registration as a tax agent, which had been refused by the Tax Practitioners Board. The dispute centred on whether Mr. Jayaretnam met the relevant experience criteria stipulated by the legislation for such registration.

The Tribunal was required to determine whether the applicant possessed the requisite practical experience in tax law and practice to be registered as a tax agent. This involved assessing the nature, duration, and quality of the experience Mr. Jayaretnam claimed to have gained.

The Senior Member, Mr. P W Taylor SC, affirmed the decision of the Tax Practitioners Board. The Tribunal found that the applicant had not demonstrated sufficient relevant experience, as defined by the legislative framework governing tax agent registration. The assessment focused on the specific duties and responsibilities undertaken by the applicant and whether these aligned with the professional standards and knowledge expected of a registered tax agent.

Orders