Le'Sam Accounting Pty Ltd and Tax Practitioners Board

Le'Sam Accounting Pty Ltd and Mr Rizkallah (the applicants) sought a stay of decisions made by the Tax Practitioners Board (the Board) to terminate their registrations as tax agents. The Board's decisions were based on findings that Le'Sam Accounting contravened the Code of Professional Conduct by failing to respond to the Board's requests and directions in a timely, responsible, and reasonable manner, and by failing to respond appropriately to a notice issued under section 60-100 of the Tax Agent Services Act 2009 (TAS Act) requiring the production of documents. The Board also found that Mr Rizkallah was not a fit and proper person to be a registered tax agent, partly due to his ultimate responsibility for unauthorised access to the Australian Taxation Office Tax Agent Portal by a firm employee, his failure to lodge his personal income tax return for the 2018 year by the due date, and his failure to ensure Le'Sam Accounting complied with the section 60-100 notice. These findings led to the conclusion that Le'Sam Accounting could no longer satisfy the requirements for registration, as its directors were required to be fit and proper persons. The applicants were also deemed ineligible to apply for registration for a period of three years.

The primary legal issue before Deputy President Bernard J McCabe was whether to grant a stay of the Board's decisions pending the determination of the applicants' review by the Administrative Appeals Tribunal (AAT). In considering the application for a stay under section 41(2) of the AAT Act, the Deputy President was required to assess various factors, including the prospects of success of the review, the interests of persons affected by the reviewable decision, and the public interest. The Deputy President also considered whether the review process would be rendered nugatory if a stay were not granted.

The Deputy President found that the applicants had not clearly articulated how the review process would be rendered nugatory. Even inferring that a short-term financial crisis might compromise the review, this was only one factor to consider. Ultimately, the Deputy President was not satisfied that a stay was necessary to secure the effectiveness of the review process. Furthermore, even if that issue had been decided in favour of the applicants, the Deputy President concluded that it would not be appropriate to grant a stay after considering the interests of those affected by the Board's decisions. The public interest, in particular, weighed against granting a stay.

Consequently, the Deputy President ordered that the interim stay be revoked. However, this revocation was deferred for five business days from the date of the reasons to allow the applicants an opportunity to assist their clients in transitioning to alternative tax agents.