Kambourakis and Tax Practitioners Board (Practice and Procedure) - [2025] ARTA 1

Kambourakis and Tax Practitioners Board (Practice and Procedure) [2025] ARTA 1 (3 January 2025)
Applicant/s:  Constantine Kambourakis
Respondent:  Tax Practitioners Board
Tribunal Number:                2024/7025

Tribunal:General Member Darian-Smith
Place:Sydney
Date:3 January 2025

Decision:The Tribunal refuses the Applicant’s application for an order under s.32(2) of the Administrative Review Tribunal Act 2024 (Cth) staying the operation or implementation of the decision of the Respondent dated 8 August 2024. The interim stay order made on 4 October 2024 is discharged.

.......................[SGD].................................................
General Member Darian-Smith
Catchwords
PRACTICE AND PROCEDURE – termination of tax agent’s registration and imposition of four-year ban – application for an order staying operation or implementation of banning order – factors relevant to the grant of a stay – prospects of success – consequences for applicant of refusal of a stay – the public interest – application for stay order refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s.41
Administrative Review Tribunal Act 2024 (Cth) s.32
Tax Agent Services Act 2009 (Cth) ss. 2-5, 20-5, 20-15, 30-10, 30-15, 30-20,30-25,30-30, 40-5, 40-25, 60-95
Cases
Birdseye and Tax Practitioners Board (2020) 82 AAR 241; [2020] AATA 1250
Cross and Tax Practitioners Board (2020) 171 ALD 337; [2020] AATA 1471
Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210
Hanieh and Tax Practitioners Board [2024] AATA 3251
Iseppi and Tax Practitioners Board (2020) 169 ALD 653; [2020] AATA 1523
Mclean and Australian Securities and Investments Commission [2016] AATA 22
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974
Taxation Guru Pty Ltd & Anor and Tax Practitioners Board (2019) 166 ALD 5628; [2019] AATA 3249
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047
Thomas and Tax Practitioners Board [2023] AATA 757
Statement of Reasons

On 8 August 2024, the Respondent determined that it was satisfied that the Applicant had:
(a)breached subsections 30-10(1) and 30-10(2) of the Code of Professional Conduct (Code) contained in the Tax Agent Services Act 2009 (Cth) (TASA). and
(b)ceased to be a “fit and proper person” for the purpose of meeting the tax practitioner registration requirement under s. 20-5(1)(a) of the TASA.
Resulting from these determinations, the Respondent made the decision on 8 August 2024[1], communicated to the Applicant by letter dated 21 August 2024[2], to:
(a)terminate the Applicant’s registration as a tax agent under s.40-5(1)(b) of the TASA and
(b)determine that the Applicant could not apply for re-registration for a period of four years from the date when the termination of his registration took place under s.40-25(1) of the TASA (Reviewable Decision).
[1] T8, pages 368-374.
[2] T9, pages 375-381.
The Reviewable Decision was the outcome of the Respondent’s investigation conducted under Sub-division 60E of TASA into whether the Applicant had failed to comply with ss. 30-10(1) and 30-10(2) of the TASA and whether the Applicant continued to meet the “fit and proper person” requirement under s. 20-5(1)(a) of the TASA.
On 12 September 2024, the Applicant made an application under s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), now s.32(2) of the AdministrativeReview Tribunal Act 2024 (Cth) (ART Act), to stay the operation or implementation of the Reviewable Decision (Stay Application).
On 4 October 2024, the Tribunal made an order by consent that the Reviewable Decision be stayed on an interim basis until the Tribunal hears and determines the Stay Application or until further order subject to the condition that the Applicant not accept any new clients in the meantime (Interim Stay Order).
The Applicant has filed several documents which are collectively being treated by the Tribunal as the Applicant’s written submissions for the purposes of the stay application. Those documents are the Applicant’s correspondence with the Tribunal dated 28 October 2024 and 7 November 2024 (with Attachments)[3], the Response to the Respondent’s Submissions dated 26 November 2024[4] and the Applicant’s Summary of Submissions Made and Additional Considerations dated 17 December 2024.
[3] Exhibit 3.
[4] Exhibit 4.
The Respondent has filed written submissions, entitled Respondent’s Submissions in relation to an Application under s.32(2) of the ART Act dated 8 November 2024 (Respondent’s Submissions). The Respondent also referred to and relied upon a document entitled “Respondent’s aide memoire: Table of Failures”[5] (Schedule of Breaches).
THE TASA REGULATORY AND DISCIPLINARY FRAMEWORK
[5] MFI-1.
The TASA contains the regulatory regime for tax agents such as the Applicant. The object of the TASA is contained in s.2-5, which provides:
(1)The object of the Act is to support public trust and confidence in the integrity of the tax profession and of the tax system by ensuring that tax agent services are provided to the community in accordance with appropriate standards of professional and ethical conduct.
(2)This is to be achieved by (among other things) providing for:
(a) the registration and regulation, by a national Board, of entities that provide tax agent services; and
(b) a Code of Professional Conduct for registered tax agents and BAS agents; and
(c) sanctions to discipline entities in relation to their conduct as a registered tax agent or BAS agent; and
(d) sanctions where tax agent services are provided otherwise than in accordance with this Act.”
In addition to having the relevant qualifications, experience and professional indemnity cover, and fulfilling annual continuing legal education requirements, the Applicant must satisfy the Respondent that he is a “fit and proper person” before he can be registered as a tax agent. In deciding whether it is satisfied, the Respondent must have regard to criteria, including “whether the individual is of good fame, integrity and character.”[6]
[6] TASA s.20-15(a).
The Code is contained in s.30-10 of the TASA. For the purposes of the Reviewable Decision, the Respondent relies on sub-sections (1) and (2) of the Code, which provide as follows:
“Honesty and Integrity
(1) You must act honestly and with integrity.
(2) You must comply with the taxation laws in the conduct of your personal affairs.”
“Personal affairs” is not a defined term in the TASA, but the Applicant makes no submission that the Respondent’s finding that he did not comply with the taxation laws did not relate to his personal affairs.
The “fit and proper person” eligibility requirement is set out in s.20-5(1)(a), which provides:
“Individuals
(1) An individual, aged 18 years or more, is eligible for registration as a registered tax agent or BAS agent if the Board is satisfied that:
(a) the individual is a fit and proper person.”
The Reviewable Decision was the outworking of an investigation of the Applicant’s conduct by the Respondent. The investigation process is contained in Subdivision 60-E of the TASA. Upon completion of the investigation, sanctions can be imposed by the Respondent if it is satisfied that breaches of the Code have occurred.
The range of sanctions is provided for in Subdivision 30-B of the TASA. The Respondent has the power under s.30-15 of the TASA to take one or more of the following steps:
(a)issue a written caution.
(b)make orders requiring completion of further training or education, limiting the range of services which the tax agent can provide or requiring service delivery by the agent to be provided under supervision.
(c)suspend the tax agent’s registration; and
(d)terminate the tax agent’s registration.
Termination of an individual tax agent’s registration occurs under Subdivision 40-A of the TASA. Relevantly, the Applicant’s registration can be terminated under s.40-5(1)(b), in circumstances where he ceased to meet one of the tax practitioner registration requirements, including that he be a “fit and proper person” under s. 20-5(1) (b) of the TASA. If a tax agent’s registration is terminated, the Respondent can determine the period, not exceeding 5 years, during which the tax agent cannot re-apply for registration.[7]
[7] TASA s.40-25(1).
FACTUAL BACKGROUND OF THE REVIEWABLE DECISION
The conduct of the Applicant which gave rise to the Reviewable Decision comprised breaches of both sub-paragraphs (1) and (2) of the Code and satisfied the Respondent that the Applicant had ceased to be a fit and proper person as required by s.20-5(1) (a) of the TASA.
The Applicant’s conduct included:
(a)making false and misleading statements to the Respondent in his continuing professional education (CPE) log dated 9 May 2024 by claiming that he had completed 55 podcast hours towards his CPE between 28 January 2022 and 19 December 2023 when the actual podcast hours listened to was 12.4 hours.[8]
(b)failing to comply with the taxation laws in the conduct of his personal affairs by failing to comply with the Australian Taxation Office (ATO) payment arrangements made on 28 March 2024, in respect of Income Tax Account (ITA) and Integrated Client Account (ICA) liabilities, failing to lodge 4 Income Tax Returns (ITRs) over a 4-year period and failing to lodge 3 quarterly Business Activity Statements (BAS).[9]
(c)failing to comply with the terms of a written undertaking given to the Respondent dated 13 February 2020 that he would ensure compliance with his payment arrangements made with the ATO and keep future lodgements up to date;[10] and
(d)failure to comply with his personal tax obligations in respect of ITA debts, for over 12 years, and, in respect of ICA debts, for over 10 years.[11]
[8] Respondent’s Submissions [8]-[9]; T5 pages 24-26; T8 pages 371-372; T9 pages 375-376.
[9] Respondent’s Submissions [1]: T8 p. 372; T9, p.376.
[10] Respondent’s Submissions [11.1].
[11] Respondent’s Submissions [11.2].
In addition, in making the Reviewable Decision, the Respondent noted that the Applicant had previously been sanctioned by it in each of 2017 and 2020 in relation to breaches by him of the Code subsection (2) in respect of his non-payment of outstanding taxation debts.[12] The earlier sanctions imposed on the Applicant were as the result of decisions taken by the Respondent in 2017 (2017 Decision) and 2019 (2019 Decision) respectively.
[12] T8 pages 372-373; T9 pages 376-377.
Details of the 2017 Decision are outlined in the Respondent’s Submissions.[13] The relevant breaches of the Code subsection (2) involved the Applicant’s failure to lodge BAS and his failure to pay ITA and ICA taxation liabilities as and when they fell due. The Respondent sanctioned the Applicant by issuing him with a written caution.[14]
[13] Respondent’s Submissions [13]-[15].
[14] T15 p.483.
Details of the 2019 Decision are also outlined in the Respondent’s Submissions.[15] Again there were breaches by the Applicant of Code subsection (2) involving failures to lodge BAS and failures to pay ITA and ICA taxation liabilities as and when they fell due. There were also failures by the Applicant to lodge ITRs by their due dates. The Respondent sanctioned the Applicant by terminating his registration as a tax agent under s.30-30 of the TASA and determining that he could not re-apply for registration for a period of 5 years. The Applicant sought review of the 2019 Decision in the Administrative Appeals Tribunal (AAT).
[15] Respondent’s Submissions [16]-[24].
On 13 February 2020, the AAT proceedings were settled on the basis of the Applicant accepting the Respondent’s offer that he give a written undertaking to ensure compliance with his payment arrangement with the ATO, ensure that all future lodgements would be kept up to date and undertake and complete a course in the TASA approved by the Respondent.
On 18 February 2020, the settlement was formalised by directions made under s.42C of the AAT Act recording the existence of the settlement agreement, setting aside the 2019 Decision, and, in substitution, imposing a written caution on the Applicant for his conduct which breached the Code.[16]
[16] T19 page 512.
The two key points which emerge from this history are, first, that there have been issues associated with the Applicant’s failure to comply with the TASA since 2010 and, second, that two previous sanctions imposed on the Applicant by the Respondent have not been successful in bringing the Applicant into compliance with the Code subsection (2).[17]
[17] See Schedule of Breaches line 1 and generally; T16 page 495.
TRIBUNAL’S POWER TO GRANT A STAY
The Administrative Appeal Tribunal’s power to stay was found in s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The equivalent provision in the Administrative Review Tribunal Act 2024 (Cth) (ART Act) is found in s.32(2), which reads:
“However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.”
It is important to bear in mind that s.32(2) operates as an exception to the General rule which is stated in s.32(1) of the ART Act, as follows:
“The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”
The Tribunal must observe the pre-conditions set out in s.32(7) of the ART Act before it makes an order staying a reviewable decision, which are to give the parties to the application for review an opportunity to make submissions in relation to the making of a stay order[18] and that it “has taken into account the interests of any person who may be affected by the review of the decision.”[19]
[18] ART Act s.32(7)(a).
[19] ART Act s.32(7)(b).
The power to order a stay under s.32(2) is only to be exercised for the purpose of securing the effectiveness of the hearing and determination of the application for review. It is the Applicant who, for practical purposes, bears the onus of satisfying the Tribunal that a stay is desirable for the requisite purpose, and the Tribunal must have sufficient evidence before it to draw that conclusion.[20]
[20] Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199, [11].
The Explanatory Memorandum to the Administrative Review Tribunal Bill makes it clear that although the wording in s.32 of the ART Act is different in some respects to the wording of s.41 of the AAT Act, those changes were made to reflect “modern drafting practices” and “not to affect the operation or effect of the provision.”[21] It follows that the authorities relevant to the principles to be applied in respect of s.41 of the AAT Act, remain relevant when considering s.32 of the ART Act.
[21] Explanatory Memorandum to the Administrative Review Tribunal Bill, [339].
The range of factors relevant to the Tribunal’s consideration of a stay are well established by the decision in Re Scott andAustralian Securities and Investments Commission[22] (Scott), and the Tribunal cases which have followed it.[23] The 6 matters listed by Downes J. in Scott are as follows:
(a)The prospects of success.
(b)The consequence for the applicant of the refusal of a stay.
(c)The public interest.
(d)The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
(e)Whether the application for review would be rendered nugatory if a stay were not granted; and
(f)Other matters that are relevant.[24]
[22] [2009] AATA 798.
[23] See for example Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 at [59]; Birdseye and Tax Practitioners Board [2020] AATA 1250.
[24] [2009] AATA 798, [4].
The Tribunal notes that the Scott factors should not be treated as a complete checklist, as that risks losing sight of the discretion which the Tribunal is being asked to exercise when considering whether it is “desirable” to award a stay “for the purpose of ensuring the effectiveness of the review.” The Tribunal adopts what was said in Technical Education Australia Pty Ltd and Australian Skills Quality Authority by SM Cameron:
“Whilst these matters identified by Downes J in Re Scott are relevant to the exercise by the Tribunal of the discretion conferred upon it by section 41(2), they are not a complete code or a “checklist” that limits or fetters the exercise of such discretion.”[25]
[25] [2018] AATA 3047 at [60].
Further, the facts and circumstances of the case, including the nature and content of the reviewable decision, will affect the respective weighting to be given to each of the factors under consideration with respect to the granting of a stay.[26] Matters specific to the Scott factors which are under consideration in this matter are dealt with below.
[26] Hopfner and Tax Practitioners Board [2019] AATA 851, [7].
Before I turn to the Scott factors, there are two further matters to be dealt with. The first relates to the Applicant’s statements of contrition and the second relates to the Applicant’s offer to submit quarterly compliance reports.
The Tribunal has noted the Applicant’s statements that he is willing to adhere to the TASA going forward and that he regrets some of the things which have happened in the past. Statements of contrition need to be supported by evidence that things can and will change. As Hill J said in Stasos v Tax Agents’ Board of New South Wales[27]:
“It will not be sufficient for him merely to express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent.”[28]
[27] (1990) 21 ATR 974.
[28] (1990) 21 ATR 974, 985.
The Applicant has offered to submit to the Respondent “on a quarterly basis, a summary of my compliance activity with respect to lodgements of income tax returns, business activity statements, ATO debt balances and CPE log.”[29] Counsel for the Respondent indicated to the Tribunal that this was not an offer which had been accepted by the Respondent.
[29] Applicant’s letter to the Tribunal dated 28 October 2024, page 6; Applicant’s letter to the Tribunal dated 7 November 2024, pages 2-3.
To the extent, if any, that the Applicant’s offer is made by way of seeking to mitigate or reduce the sanction imposed by the Respondent, that is not a material consideration at this interlocutory hearing. In Hanieh and Tax Practitioners Board[30] (Hanieh), the Tribunal said:
“I note that the Applicant made submissions on what I have labelled to be a ’special circumstances’ argument, that is, he has acknowledged wrongdoing on the understanding that this acknowledgement may result in a reduction of the penalty imposed against him. Such matters, in the circumstances of this case, do not play a role in assessment of whether a stay is appropriate.”[31]
Similarly, the Applicant’s offer is not relevant for the purposes of determining his stay application.
[30] [2024] AATA 3251.
[31] [2024] AATA 3251 at [37].
STAY FACTOR (A) PROSPECTS OF SUCCESS
The Tribunal’s consideration of the Applicant’s prospects of success for the purpose of determining the stay application does not require the Tribunal to conduct a preliminary hearing of the review application (on the evidence then available). As was explained in Greenfield Education Pty Ltd and Australian Skills Quality Authority,[32] by Senior Member Poljak:
“The authorities establish that a consideration of the prospects of success of an application and so the merits of a substantive application must not involve the Tribunal undertaking a full consideration of those merits. While it is neither necessary or appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that that the applicant has some prospects of success.”[33]
[32] [2018] AATA 4210.
[33] [2018] AATA 4210, [7].

It follows that the Tribunal must satisfy itself that the Applicant’s prospects of success are high enough to clear the threshold of “some prospects of success” before a stay can be granted.
The Respondent’s primary submission in respect of the Applicant’s lack of prospects of success on the substantive application for review, is that the Applicant “has not advanced any argument or evidence capable of contesting the findings made by the Respondent.”[34]
[34] Respondent’s Submissions, [48].
In Thomas and Tax Practitioners Board,[35] a tax agent case, Senior Member Lazanas (as then was, now Deputy President) said:
“Regarding the Applicant’s prospects of success in relation to the Decisions Under Review, the Applicants did not point to the existence of any cogent facts or the possibility of legal error that may be argued at the hearing which may lead to a different result including a reduction in the four-year preclusion period. That is, the Applicant’s failed to demonstrate, even at a high level, that they have sufficiently arguable cases: see Re Poidevin and Australian Securities and Investments Commission [2018] AATA 124, [39]-[40].”[36]
[35] [2023] AATA 757.
[36] [2023] AATA 757, [35].
In Poidevin and Australian Securities and Investments Commission,[37] Deputy President Redfern stated:
“If the reviewable decision discloses findings and reasoning that an applicant cannot or does not challenge, this would be critical to the issue of prospects and would be a significant factor that would weigh against the granting of a stay. It is incumbent on the applicant for a stay to establish the existence of such facts and circumstances or the possibility of legal error that may lead to a different result, through new evidence or submissions that were not raised before the delegate or by contesting findings of fact or conclusions of law (or a combination of both) that are open to challenge.”[38]
[37] [2018] AATA 124.
[38] [2018] AATA 124, [40].
The Respondent contends, applying the Thomas “yardstick”, of whether the Applicant can point to cogent facts or the possibility of legal error which might lead to a different result at the final hearing, that the Applicant is not contesting the findings made by the Respondent. The Respondent relies on the Applicant’s Response to the Respondent’s Submissions dated 26 November 2024 at paragraphs [5] and [7], which is says amount to admissions as to the underlying conduct. The Respondent otherwise points to the lack of argument from the Applicant about the matrix of facts on which the Reviewable Decision is based.
The Respondent does seem to accept that there is some scope for evidence and argument about the payment plans or arrangements entered by the Applicant with the ATO,[39] although it says that the Applicant failed to comply with his payment plans in relation to his ICA and ITA debts.[40]
[39] Respondent’s Submissions [49]-[50].
[40] Respondent’s Submissions [51]-[52].
It also appears likely that the Applicant will file evidence for the final hearing in relation to the CPE log, although the Applicant apparently does not seem to contest the central factual allegation made against him, which is that the 55 podcast hours recorded in the Applicant’s CPE log is not a true representation of the actual hours of podcasts listened to.
The matters in the preceding two paragraphs can be further explored at the final hearing, but the Tribunal is not persuaded on the material now before it that the Applicant has good prospects of success on the application for review. Accordingly, this factor weighs heavily against the granting of a stay.
STAY FACTOR (B) CONSEQUENCES FOR THE APPLICANT OF THE REFUSAL OF A STAY
It is in the very nature of an order terminating the Applicant’s registration as a tax agent that financial and other consequences will flow from the de-registration. As was observed by the Tribunal in Taxation Guru Pty Ltd & Anor and Tax Practitioners Board:[41]
“The termination of the registration will have consequences in terms of the Applicants’ ability to maintain clients and the intended franchise operation. However, this is not a unique circumstance and would be faced by anyone in the position of losing their tax agency registration.”[42]
[41] (2019) 166 ALD 528; [2019] AATA 3249.
[42] (2019) 166 ALD 528,538; [2019] AATA 3249 at [45].
Regard must be had to the fact that the Applicant is working in a regulated occupation and that the Respondent’s role is likely to involve lawful intervention, where it deems that to be necessary. In Iseppi and Tax Practitioners Board,[43] Deputy President McCabe stated:
“Where questions have been raised about the risks of allowing the applicants to remain in business, the applicants should not necessarily expect the benefit of the doubt at this stage of the proceedings. As the Tribunal has pointed out elsewhere, an individual who participates in a regulated occupation enjoys a measure of protection from competition in order to maintain standards. Anyone who is admitted to that occupation must accept the risk of the regulator’s lawful intervention in that cause.”[44]
[43] (2020) 169 ALD 653; [2020] AATA 1523.
[44] (2020) 169 ALD 653, 657; [2020] AATA 1523 at [24].
Whilst it is understandable that an applicant will be very focussed on this factor, it is only one of the relevant factors to be considered, and weighed, by the Tribunal. It will seldom, of itself, determine whether a stay is to be granted. As the Tribunal said in Mclean and Australian Securities and Investments Commission:[45]
“There would appear to be little doubt that the Banning Order has caused and will continue to cause significant hardship to the Applicant as indeed it would to most if not all persons who were the subject of such an order.
In and of itself that is hardly ever a sufficient basis for securing a stay but in this case it is relevant in the context of the other matters raised.”[46]
[45] [2016] AATA 22.
[46] [2016] AATA 22 at [21]-[22].
There is no question that if the Reviewable Decision is implemented, there will be resultant hardship for the Applicant. In his correspondence with the Tribunal dated 28 October 2024, the Applicant says: “Terminating my registration will bring about a multitude of serious consequences for both myself personally, for existing clients and the efficient collection of taxation from these same clients, acting for and on behalf of the Australian Taxation Office.”
The Applicant goes on to point to a range of extenuating circumstances, including the effects of COVD-19 and his carer responsibilities for a special needs child and aging parents.
The Respondent contends that “any adverse consequences for the Applicant are outweighed by other considerations”, in particular by the public interest. It further submits that none of the difficulties experienced by the Applicant in the last 5 years should be accorded great weight because of the much longer history of non-compliance by the Applicant in respect of his personal taxation affairs and other issues, which have been documented in detail in the Schedule of Breaches.
On balance, this factor weighs slightly in favour of the grant of a stay.
STAY FACTOR (C) THE PUBLIC INTEREST
In Hanieh, Senior Member Benk considered what is contemplated by the “public interest”:
“Who and what is the public interest? I find that the term ’public’ is not restricted to the use of those utilising the services of the Applicant, but the definition extends to all Australians who rely on the integrity of the tax system to fund everyday services, including, but not limited to national security, education, health and welfare, just to name a few. It also includes registered agents who are also required to comply with the TASA Act and the Code.
Considering the evidence, I find the public interest is likely to be adversely affected by the Applicant continuing to act as a tax agent, even if for a limited time, especially in circumstances where he has admitted that his conduct has fallen short. Sight should not be lost of the fact that the whole of the scheme of the Act is directed to the public interest in supporting trust and confidence in tax agents.”[47]
[47] [2024] AATA 3251, [29]-[30].
In Cross and Tax Practitioners Board,[48] Deputy President Boyle said of the public interest, in a similar context to the present:
“The public interest is served in tax agents, upon whose honesty the system of lodgement of tax returns depends, being held to, and being seen to be held to, the highest standard of professional and ethical conduct.”[49]
[48] (2020) 171 ALD 337; [2020] AATA 1471.
[49] (2020) 171 ALD 337, 352; [2020] AATA 1471, [68].
In Birdseye and Tax Practitioners Board[50] (Birdseye), Senior Member Olding said, in the context of serious and repeated non-compliance which was not denied by the tax agent:
“The public interest in the integrity of the tax agent registration system in my view would not be served by granting stays in circumstances where I have concluded that the applicants have not presented a foundation on which I could be satisfied they have reasonable prospects of success in the substantive applications and most findings of serious, repeated non-compliance with the requirements of registration have either been implicitly accepted or not denied. This weighs heavily against granting the stays.”[51]
[50] (2020) 82 AAR 241; [2020] AATA 1250.
[51] (2020) 82 AAR 241, 261; [2020] AATA 1250, [108].
The Respondent submits that were the Tribunal to grant a stay in the present case, it would undermine the Respondent’s reputation as an effective regulatory body and may publicly undermine its ability to discharge its statutory duties under the TASA.[52] The situation has been exacerbated by the alleged failure of the Applicant to act honestly and with integrity under the Code subsection (1), in relation to the CPE log.
[52] Respondent’s Submissions at [64].
The Tribunal is persuaded that the public interest factor weighs against the grant of a stay.
STAY FACTOR (D) CONSEQUENCES FOR THE RESPONDENT IN CARRYING OUT ITS REGULATORY FUNCTION
The consequences for the Respondent in the granting of a stay should not be overstated, as by the act of terminating the Applicant’s registration it could be said to have performed its general deterrence function. The relevance of this factor was explained by Senior Member Olding in Birdseye as follows:
“It is, however, not irrelevant that granting the stays would mean that clients would be exposed to risk notwithstanding the Board having carried out its function of investigating the conduct of the applicants, finding what appears to be serious and repeated non-compliance and taking what it regards as appropriate action. Exposing clients to such risk is contrary to the object of TASA to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct.”[53]
[53] (2020) 82 AAR 241, 261; [2020] AATA 1250, [109]. See also Hanieh at [31].
The Tribunal accepts the Respondent’s submission that in circumstances where the factual findings underpinning the Reviewable Decision are for the most part not being contested by the Applicant, the need to protect the Respondent’s reputation as an effective regulator and its ability to function as a regulatory body, dictates that this factor should weigh slightly against the grant of a stay.
STAY FACTOR (E) WHETHER THE APPLICATION FOR REVIEW WOULD BE RENDERED NUGATORY IF A STAY WERE NOT GRANTED
The Applicant has not sought to argue that his application for review would be rendered nugatory if a stay was to be refused. The Reviewable Decision includes a determination that the Applicant cannot apply for re-registration for a four-year period. From the Applicant’s standpoint, there is a need for the application for review to be heard and determined, irrespective of whether a stay is granted.
In Cross and Tax Practitioners Board[54], Deputy President Boyle explained, in respect of this factor:
“In relation to the First Applicant, while I accept that he will suffer financial loss if the stay is not granted, it is not the case that the substantive application would be rendered nugatory or pointless. He will still be facing a two-year prohibition on applying for registration which, if he wants to practice as a tax agent before the expiry of that period would prevent him from making an application for registration, so there will still be obvious utility in his seeking an overturning of that decision or reduction in the prohibition period.”[55]
[54] (2020) 171 ALD 337; [2020] AATA 1471.
[55] (2020) 171 ALD 337, 352-353; [2020] AATA 1471 at [73].
The Tribunal accepts that the Applicant will suffer some financial loss if the stay is not granted, but this is not a case where the application for review will be rendered nugatory or pointless if the stay is refused.
CONCLUSION AND DECISION
I accept that the Applicant will suffer financial loss as the result of the Reviewable Decision being implemented and that that factor weighs in favour of the granting of a stay. However, the preponderance of relevant factors weighs against the granting of a stay. I am not persuaded on the material currently before the Tribunal that the Applicant’s prospects of success are sufficiently strong that a stay ought to be granted (see [36]-[44] above) or that the public interest weighs in favour of a stay order (see [52]-[56]).
The prejudice to the Applicant which flows from the Tribunal refusing the Applicant’s application for a stay can be mitigated by the parties working with the Tribunal to have the substantive proceedings heard and determined as soon as that can sensibly be achieved.
It follows that the Stay Application is refused, and the Interim Stay Order is discharged.
Date of Hearing:  17 December 2024
Applicant:  Mr C. Kambourakis (self-represented)
Counsel for the Respondent:         Ms C. Ensor
Solicitors for the Respondent:      Ms M Vongphakdi, Ms J Mills (Tax Practitioners Board)