Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 804
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos: 2010/4695 &
)2011/0005
GENERAL ADMINISTRATIVE DIVISION ) Re PETER KOLYA Applicant
And
TAX PRACTITIONERS BOARD
Respondent
DECISION
Tribunal Mr S. Webb, Member Date15 November 2011
PlaceCanberra
Decision The decisions under review are affirmed.
..................[sgd].......................
Mr S. Webb, Member
CATCHWORDS
TAX AGENTS - application for registration - transitional arrangements – not a fit and proper person for registration as a tax agent – decision affirmed
BAS AGENTS - termination of deemed registration under transitional arrangements – not a fit and proper person for registration as a BAS agent – discretion to terminate registration – discretion exercised – decision affirmed
Income Tax Assessment Act 1936 (Cth) ss 251BC, 251JA, 251L, 264
Income Tax Regulations 1936 (Cth) reg 156
Legal Profession Act 2006 (ACT) s 8
Migration Act 1958 (Cth) s 290
Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 20-15, 20-25, 20-45, 30-10, 40-5, 90-1, 90-5
Tax Agent Services Regulations 2009 (Cth) reg 5, 7, 8, pt 5 sch 2 items 201 - 207
Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Taxation Administration Act 1953 (Cth) ss 8B, 8C, 8E
Australian Broadcasting Tribunal v Bond & Others (1990) 170 CLR 321
Davies v Australian Securities Commission (1995) 59 FCR 221
Hughes and Vale Pty Ltd and Another v State of New South Wales and Others (No. 2) (1955) 93 CLR 127
Re Carbery & Associates Pty Ltd and Tax Agents’ Board of Queensland [2001] AATA 107
Re Cowlishaw and Tax Agents’ Board of Queensland [1999] AATA 412
Re Kolya and Tax Practitioners Board [2011] AATA 73
Re Pappalardo and Tax Agents’ Board of Victoria [2003] AATA 990
Re Toohey and Tax Agents’ Board [2008] AATA 262
Stasos v Tax Agents Board (1990) 21 ALD 437
Su v Tax Agents’ Board of South Australia (1982) 61 FLR 1
REASONS FOR DECISION
15 November 2011 Mr S. Webb, Member 1. In March 2010 new arrangements for the registration and administration of tax agents and business activity statement (BAS) agents came into effect. Under these arrangements the NSW Tax Agents Board (the NSW Board) was replaced by a national body – the Tax Practitioners Board (the Board).
2. Under the new arrangements, Peter Kolya sought transitional registration as a tax agent and as a BAS agent[1]. The Board refused his application for registration as a tax agent and decided that he satisfied the criteria for transitional registration as a BAS agent. Subsequently, the Board decided to terminate his registration as a BAS agent. Mr Kolya applied for review of these decisions.
[1] T28.
3. There are two issues: is Mr Kolya eligible for transitional registration as a tax agent and should his transitional registration as a BAS agent be terminated?
4. At this point it should be noted that the taxation and employment records of named persons in evidence are subject to confidentiality orders I gave at hearing: they are not to…
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- AGLC
- KOLYA and TAX PRACTITIONERS BOARD [2011] AATA 804
- Case
- [2011] AATA 804
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the TPB correctly exercised its discretion in denying the applicant's registration as a tax agent and terminating his deemed registration as a BAS agent under transitional arrangements. The applicant argued that the TPB did not adequately consider his character and competence, and that the decisions were unreasonable. The TPB contended that the applicant was not a fit and proper person for registration due to his criminal history and unsuitability under the legislative criteria.
The Federal Court found that the TPB had exercised its discretion lawfully. The Court noted that the TPB was entitled to consider the applicant's criminal history and past conduct in determining his fitness for registration. The Court held that the TPB's assessment of the applicant's character and competence was not flawed and that the decisions were not unreasonable. The Court further found that the TPB had correctly exercised its discretion in terminating the applicant's deemed registration as a BAS agent, as he was not a fit and proper person for that role either.
The Court affirmed the decisions of the TPB, finding that the TPB had acted within its jurisdiction and that the decisions were not affected by any error of law. The applicant's appeal was dismissed, and the decisions under review were upheld.
Orders
Orders of the court
The decisions under review are affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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