Macartney and Tax Agents' Board of Victoria

[2008] AATA 210

ADMINISTRATIVE APPEALS TRIBUNAL     )

)       2007/0793

GENERAL ADMINISTRATIVE DIVISION     )           

Re:ROBERT MACARTNEY

Applicant

And:TAX AGENTS’ BOARD OF VICTORIA

Respondent

Tribunal:  Mr G L McDonald, Deputy President

Place:  Melbourne

Date:  31 March 2008

CORRIGENDUM TO DECISION [2008] AATA 210

The Tribunal amends its decision and reasons for decision dated 27 February 2008 as follows:

Decision

delete the words “applying for”

and replace with “effective 29 February 2008”

Paragraph 7, last sentence

delete the words “applying for”

and replace with “effective 29 February 2008”

……………………………………..

Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 210

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/0793

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT MACARTNEY

Applicant

And TAX AGENTS’ BOARD OF VICTORIA

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date27 February 2008

PlaceMelbourne

Decision The decision under review is set aside and substitute a decision that the applicant be suspended from applying for registration as a tax agent for a period of three months.

……………………………………..

Deputy President

REASONS FOR DECISION

27 February 2008   Mr G L McDonald, Deputy President

1. The sole issue is whether in this appeal the applicant is, under s 251BC(1)(d) of the Income Tax Assessment Act 1936 a person not of good fame, integrity and character to register as a tax agent.  If the board, or this tribunal, standing in the shoes of the board, finds that he isn’t a person of good fame, integrity and character, it may then determine he is not a fit and proper person to prepare income tax returns.  T18[1] reveals that the Tax Agents’ Board (‘the Board’) cancel the applicant’s registration on the basis that the applicant had prepared a statement of employment dated 9 June 2006 using the electronic letterhead of his then employer, and the electronic signature of one of the partners of the firm Mr I Davey that he then worked for, Blackford Davey and Stevens.  He had been working for that firm for a period of approximately five years, and had been notified by the firm that his contract of employment would not be renewed beyond 30 June 2006.

[1] Documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975

2.      The facts beyond me reveal another possible reason for action by the Board; namely, on his last day of employment, 30 June 2006, the applicant improperly and without authority forwarded the employer’s letterhead and the partner’s signature in electronic form to his home computer.  It is submitted by the Board that the only purpose in undertaking this action was to enable both the letterhead and the signature to be used for an improper purpose.  In response to the above, the applicant claims he was authorised by Mr Davey to send the statement of employment, that is, the statement dated 9 June 2006.  The applicant, while he recalled discussion with Mr Davey about applying for a renewal of his tax agent’s registration, could not recollect whether or not he showed the document to Mr Davey prior to sending it.

3.      Mr Davey denied any discussion about the applicant providing a statement of employment for the Board.  Mr Davey is clear he did not see the letter of 9 June 2003 prior to it being sent, or indeed up until the time after the applicant left his employment.  Mr Davey said he would, however, have been prepared to give such a letter, had he been requested, and, in favourable terms to the applicant.  While the evidence of Mr Davey and the applicant revealed some discussion about the applicant’s right to earn a living after he ceased employment with the firm, I am unable to accept that Mr Davey authorised the applicant to prepare and send, under his signature, the letter of 9 June 2006.  I am also satisfied that that letter was not implicitly or explicitly authorised to be sent by Mr Davey.

4.      While the applicant might have been authorised to send standard letters using the partner’s signature, the letter to the Board is not a standard letter.  Further, in a letter from the Board requesting information from the applicant, dated 31 May 2006, the applicant was specifically advised that the information must be prepared and signed by the applicant’s employer.  It stretches credulity beyond the point of reasonableness that an employee, experienced as the applicant claims to be, did not understand that he was not complying with what was requested of him by the Board.  This is particularly so when the letter involved in bold print at the end stated:

Note: please do not prepare and sign your own statement of relevant employment.

5.      The applicant prepared the letter and albeit he signed using his employer’s name the result was that he effectively signed his own letter.  The tribunal accepts that the applicant also sought a general reference from Mr Davey, and while Mr Davey undertook to give such a reference, it was not completed before 30 June.  It was, however, given to the applicant at a farewell lunch, organised for the applicant by the employer, on or about 6 July 2007.  In transmitting the letterhead and Mr Davey’s signature in electronic form to his home computer, the applicant acknowledged that he had behaved badly, but claimed he did so in frustration.  I am satisfied that there is no evidence to substantiate that he ever used the materials for transmittal in any improper way.  The fact that he sent it, however, raises at least a possibility of it being used in circumstances where any use would be clearly unauthorised by his previous employer.

6.      The actions of the applicant, as I have found them, leave me satisfied that he is not of good fame, integrity and character, and is not a fit and proper person to prepare income tax returns and transact business on behalf of income tax matters.  However, I am not satisfied that the cancellation of his registration is warranted.  Even taking into account the continuing nature of his conduct, ie in assisting with the assertion that he had authority to send the letter of 9 June 2006, he has the competence to undertake the work involved as Mr Davey confirmed.  I accept that, as an older man, aged 64 the applicant was concerned as to his future employment, particularly following illness and an operation.  Without the security of employment, I can accept some anxiety was involved.

7.      While his actions may go to explain, they do not excuse his conduct.  I note he has continued to operate under a stay given by the tribunal at the outset of this proceeding.  I appreciate any disqualification will be disadvantageous to him in his circumstances.  However, I note he is a qualified accountant, and any suspension imposed only relates to his ability to prepare tax returns.  I also am aware that the purpose of the imposition of a penalty is not to punish him but to protect the public.  In this case, the public need to be protected from any tendency the applicant may have, arising from whatever cause, to act improperly when handling tax returns on behalf of the members of the public.  I believe this will be best met by the applicant being suspended for a period of three months.  I therefore set aside the decision under review and substitute a decision that the applicant be suspended from applying for registration as a tax agent for a period of three months.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President

Signed:         ...............................................................

Diane De Andrade           PA

Date of Hearing  27 February 2008

Date of Decision  27 February 2008
Counsel for the Applicant         Mr R. Niemann

Solicitor for the Applicant          Mr C. White

Lardners

Solicitor for the Respondent     Mr S. Linden

Australian Government Solicitor