Madz and Tax Practitioners Board - [2019] AATA 4773

Madz and Tax Practitioners Board [2019] AATA 4773 (15 November 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2019/3630
Re:Stephen Madz
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:15 November 2019
Place:Sydney

The reviewable decision of the Respondent dated 30 May 2019 is varied to reduce the period for which the Applicant is prohibited to apply for registration as a tax agent from 18 months to 12 months. The reviewable decision is otherwise unchanged.
................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
TAX AGENTS – termination of registration as tax agent – applicant prohibited from applying for registration for period of eighteen months – alleged breaches of Code of Professional Conduct - whether applicant has failed to comply with taxation laws in the conduct of his personal affairs – whether applicant failed to respond to direction of Board in timely manner – decision varied
LEGISLATION
Tax Agent Services Act 2009 (Cth) – ss 30-5, 30-10, 30-15, 30-20, 30-25, 30-30, 40-25
Income Tax Assessment Act 1997 (Cth) – s 991-5
CASES
Peter Toohey and Tax Agents’ Board of Victoria [2009] AATA 603
Su v Tax Agent’s Board South Australia (1982) 13 AR 192
REASONS FOR DECISION
The Hon. John Pascoe, AC CVO
15 November 2019

In this case Mr Madz (‘the Applicant’) seeks a review of a decision made by the Respondent on 30 May 2019 to terminate his registration as a tax agent pursuant to section 30–30 of the Tax Agent Services Act 2009 (‘TASA’) and to prevent the Applicant applying for registration for a period of 18 months from the date of termination pursuant to section 40–25(1) of the TASA.
The Respondent’s decision was based on its findings that the Applicant had breached subsections 30–10(2) and 30–10(14) of the Code of Professional Conduct (‘Code’) contained in the TASA, in that he had failed to comply with the taxation laws in the conduct of his personal affairs and had failed to respond to a direction from the Respondent in a timely, responsible and reasonable manner. In particular the Applicant had regularly failed to meet lodgement dates for his personal income tax returns and monthly business activity statements. The defaults had not been rectified and dated back to May 2017.
On 17 August 2019 the Tribunal granted a stay of the reviewable decision.
THE RELEVANT LAW
Section 30-5 of the TASA provides that the Code applies to all registered tax agents.
Section 30-10 of the TASA sets out the Code. The sections of the Code which are relevant to these proceedings are:
Honesty and integrity
….
2You must comply with the *taxation laws in the conduct of your personal affairs.
….
Other responsibilities
….
14You must respond to requests and directions from the Board in a timely, responsible and reasonable manner.
The term ‘taxation law’ is defined in section 991-5 of the Income Tax Assessment Act 1997 and includes the TASA and any Act in…

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: [2019] AATA 4773
Decision Date: 15 November 2019

CaseChat Overview and Summary

This matter concerned an application by Mr. Madz for review of a decision by the Tax Practitioners Board. The Board had determined to terminate Mr. Madz's registration as a tax agent and imposed an 18-month prohibition on him applying for re-registration. The dispute arose from allegations that Mr. Madz had failed to comply with taxation laws in the conduct of his personal affairs and had not responded to directions from the Board in a timely manner. The application was heard by the Hon. John Pascoe AC CVO.

The primary legal issues before the court were whether Mr. Madz had indeed failed to comply with taxation laws in his personal affairs and whether he had failed to respond to the Board's directions in a timely manner, as alleged by the Respondent. The court was required to consider these findings in the context of the appropriate period of prohibition from re-registration.

In reaching his decision, the court had regard to all the circumstances of the case, including the need for the applicant to have sufficient time to remedy the outstanding issues. Applying this consideration, the court determined that the period of prohibition should be reduced. The court varied the reviewable decision of the Tax Practitioners Board, reducing the period during which Mr. Madz is prohibited from applying for registration as a tax agent from 18 months to 12 months. The decision was otherwise affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to all of these circumstances and the need for the Applicant to have time to remedy all of the outstanding issues, I consider it appropriate to reduce the period during which the Applicant is prevented from applying for registration to 12 months.DECISION The reviewable decision of the Respondent dated 30 May 2019 is varied to reduce the period for which the Applicant is prohibited to apply for registration as a tax agent from 18 months to 12 months. The reviewable decision is otherwise unchanged.

Ratio Decidendi

Legal Principle Established

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