Marzol and Tax Agents' Board of Queensland
[2007] AATA 1087
•27 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1087
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/379
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT MARZOL Applicant
And
TAX AGENTS’ BOARD OF QUEENSLAND
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date27 February 2007
PlaceBrisbane
Decision The Tribunal determines:
(i) that the decision under review should be set aside.
(ii) the applicant is a fit and proper person to practise as a Tax Agent.
.........[Sgd]..........
KS Levy
Senior Member
CATCHWORDS
TAX AGENT – re-registration as a tax agent – ‘fit and proper person’ – whether ‘special circumstances’ exist – applicant charged with offence for failure to lodge personal tax returns – Tax Agents’ Board refused the applicant’s re-registration as a tax agent – decision set aside
Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37
Income Tax Assessment Act 1936 (Cth) ss 251A, 251BC, 251JC
Taxation Administration Act 1953 (Cth) ss 8C, 8E
Crimes Act 1914 (Cth) s19BVBY v Tax Agents’ Board of Victoria [2006] AATA 103
Tosio v Tax Agents’ Board of New South Wales [2005] AATA 1015
Stubbings v Tax Agents’ Board of New South Wales [2006] AATA 846
Re Su and the Tax Agents’ Board, South Australia (1982) 82 ATC 4284
Re Ivovic and Director-General of Social Services (1981) 3 ALN N97
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Carbery and Associates Pty Ltd and Tax Agents’ Board of Queensland [2001] AATA 107
Pappalardo v Tax Agents Board of Victoria [2003] AATA 990
Reichert v Tax Agents’ Board of New South Wales [2005] AATA 188REASONS FOR DECISION
27 February 2007 Dr KS Levy, Senior Member The Application
1. The applicant, Robert Lawrence Marzol, was first registered as a Tax Agent in about 1988. He has continued to be so registered until the Tax Agents’ Board determined on 3 May 2006, that he was no longer a fit and proper person to remain registered as a tax agent. The applicant was advised of this decision on 10 May 2006. That decision relates to a failure by the applicant to lodge his personal tax returns for the years 2001, 2002 and 2003 and which also involved his pleading guilty in the Magistrates Court for statutory breaches of the obligation to lodge such returns. Mr Marzol has appealed against the decision to refuse his re-registration as a Tax Agent to this Tribunal, under s 29 of the Administrative Appeals Tribunal Act 1975.
2. The applicant was represented by Mr Horneman-Wren of Counsel, instructed by Lehns, Solicitors. The respondent was represented by Ms M Brennan of Counsel, instructed by Ms A Bishop, of the Australian Government Solicitor’s Office.
Issues
3.The questions for the Tribunal to determine are:
(i)Is the applicant a “fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters”? (Income Tax Assessment Act 1936, s 251JC(1)(a)(i)).
(ii)In determining the question in (i) above, are there “special circumstances” as referred to in s 251BC(3)(c) of the Income Tax Assessment Act 1936, whereby the Tribunal should disregard:
“(i) a conviction of the person;
(ii) the doing of an act or thing by the person; or
(iii) an omission of the person”
4. It is noted that the applicant and the respondent agree that the questions above are to be determined as at the date of the Tribunal hearing (that is 28 November 2006, and not at the date of the application for re-registration in 2004, nor as at the date of the Tax Agents’ Board decision on 3 May 2006.
Relevant Statutory Provisions
5. The relevant statutory provisions are:
Taxation Administration Act 1953 (“TAA”)
8C Failure to comply with requirements under taxation law
(1) A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:
(a) to furnish an approved form or any information to the Commissioner or another person;
…
is guilty of an offence.
Sect 8E - Penalties for failure to comply with requirements under taxation law
…
(2) Subject to subsection (3), where:
(a)a person is convicted of an offence against section 8C or subsection 8D(1) or (2); and
(b)the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding $4,000.
(3) Where:
(a) a person is convicted of an offence against section 8C or subsection 8D(1) or (2);
(b) in a case where the person is a natural person--the Commissioner has elected under subsection 8F(1) to treat the offence otherwise than as a prescribed taxation offence; and
(c)the court before which the person is convicted is satisfied that the person has previously been convicted of 2 or more relevant offences;
the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.
Income Tax Assessment Act 1936 (“ITAA”)
Sect 251A Interpretation
Serious taxation offence means:
…
(c) an offence that is:
(i)a taxation offence within the meaning of Part III of the Taxation Administration Act 1953; and
(ii)punishable on conviction by either or both of the following:
(A) a fine exceeding $2,000;
(B) imprisonment.
Sect 251BC - Fit and proper persons to prepare income tax returns
(1) Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:
(a) the person is not a natural person;
(b) both of the following conditions are satisfied:
(i)the person was not registered as a tax agent, or as a nominee, for the purposes of this Part immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No. 2) 1988 ;
(ii)the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed;
(c)the person has not attained the age of 18 years;
(d)the person is not of good fame, integrity and character;
(e)the person has been convicted of a serious taxation offence during the previous 5 years; or
(f)the person is under sentence of imprisonment for a serious taxation offence.
(2) Nothing in paragraph (1)(e) or (f) limits the generality of paragraph (1)(d).
(3) Where:
(a) a Board is required, in considering an application for:
(i) re‑registration as a tax agent; or
(ii) re‑registration of a nominee of a tax agent;
to decide whether the Board is satisfied that a particular person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(b) the person is not under sentence of imprisonment for a serious taxation offence; and
(c) the Board is satisfied that, because of special circumstances:
(i) a conviction of the person;
(ii) the doing of an act or thing by the person; or
(iii) an omission of the person;
should be disregarded;
the Board may, in making the decision referred to in paragraph (a), disregard the conviction, the doing of the act or thing or the omission, as the case requires.
(4) For the purposes of this section:
(a) a person who has been released from serving a part of a sentence of imprisonment on parole or upon licence to be at large shall be taken to be under sentence of imprisonment during any period during which action can be taken by way of requiring the person to serve the whole or a part of the remainder of that sentence; and
(b) a person who has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person giving a good behaviour security shall be taken to be under sentence of imprisonment during any period during which action can be taken for a breach of a condition of that security.
(5) A reference in subsection (4) to a good behaviour security given by a person is a reference to a security given by the person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to his or her behaviour.
Sect 251JC - Re-registration of tax agents
(1) The Board shall re‑register the applicant as a tax agent if the applicant satisfies the Board that:
(a) if the applicant is a natural person:
(i)the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
(ii) the applicant is not an undischarged bankrupt;
…
(2) The Board shall refuse to re‑register the applicant in any other case.
Crimes Act 1914
Sect 19B - Discharge of offenders without proceeding to conviction
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
…
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i) that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
Evidence
6.The following documents were admitted into evidence:
·Exhibit 1 Documents lodged pursuant to s 37 of the
Administrative Appeals Tribunal Act 1975
·Exhibit 2 Statement of the applicant dated 31 August 2006 and attachments
THE APPLICANT
7. The applicant, Robert Lawrence Marzol, gave sworn evidence. He is 49 years of age and graduated from the New South Wales Institute of Technology in 1984. He has been a member of the Professional Accounting Body, CPA Australia (since March 1985), and was registered as a Tax Agent in approximately 1988. He is also a member of the National Tax and Accountants’ Association, having joined that organisation in 2003.
8. The applicant commenced practice as an Accountant in his own business in Sydney in about 1988. He, his wife and two daughters subsequently relocated to the Gold Coast in 1995 where he purchased an existing practice. He is currently the principal of that firm.
9. Mr Marzol referred to his circumstances changing in about 1999 in the lead up period to the introduction of GST legislation. He assisted in running group seminars in conjunction with the Australian Tax Office (ATO). He said that this involved a significant amount of work for no financial reward. Subsequently, he also had a number of staffing and medical problems.
10. In relation to the staffing issues, he first employed a person as an accountant whom he later found was incompetent and terminated that person’s services three months later (in November 1999). That former employee made subsequent threats of physical harm to the applicant and his family. He then employed another person as a financial planner and found that that person had been conducting illegal share trading on his account. That person’s employment was also terminated, but in defending himself against an action for unfair dismissal, as well as ensuring his workplace documentation was adequate, he incurred legal costs of $10,000.
11. In June 2000 he employed another person who was not well qualified but could do manual bookkeeping work. He found this did not reduce much pressure on him to undertake more responsible aspects of his practice. He had to engage another person to assist with some of the more routine and procedural work for clients. Both of those staff created some tension in his office and he found one, in fact, had a drinking problem. The latter person’s employment was terminated in May 2001. He subsequently found a person of a higher calibre in June 2001 and that employee still works in his practice. He then took on a younger accountant who demanded a salary he could not afford, but resolved to offer her a partnership. The terms of the partnership involved her not being required to put in any equity funds, but her equity was credited on the basis of new clients which she generated for the business. That person also subsequently left taking a large part of his client base and a number of staff and furniture.
12. The applicant referred to surgery which his father required, causing pressure on his circumstances and resulting in him subsequently being treated for anxiety and depression. He also had a mother-in-law who was being treated for terminal cancer and in addition, he was concerned that she had asked his daughter to research euthanasia on the internet for her. Subsequently, the applicant himself required surgery in 2003 to remove a growth from his voice box, and in 2005 he was incapacitated for about three months by a virus related to glandular fever.
13. The applicant gave evidence that he has since built up more competent staff and has an auditor from another firm who works in his practice one day per week (initially two days) to undertake audit of his ‘superannuation’ clients as well as attending to his own personal tax returns.
14. In cross-examination, he said his practice had been relatively consistent over the past ten years with the majority of clients requiring tax services and up to 20% of work being related to financial planning.
15. The applicant agreed with Counsel for the respondent that in July 2004 the Tax Agents’ Board raised the issue of the outstanding tax returns with him and that they regarded it as a serious matter. He stated that Mr Milward, the accountant he employed for one day a week, had completed his returns but the applicant himself delayed the process because he had an obsessive characteristic and wanted to recheck what his accountant had done. Counsel also referred to correspondence from the Tax Agents’ Board on 3 December 2004 and 28 January 2005, to which the applicant had made no response. He stated that he had since lodged his 2005 tax return but he had not lodged his 2006 tax return (which was due on 31 October 2006).
16. Mr Marzol stated in response to questioning by Counsel that there were still some discrepancies he had found even with his current staff. He agreed that the history of his lodging his own tax returns on time since 1988 had not been very prompt, and indeed the majority had been completed only after a demand was made by the ATO. However, Mr Marzol stated that he put his clients first and the record of his performance for his clients was very good. The medical reports by a number of professionals have been put into evidence but the applicant admitted that he had not undergone any specialised therapy, although he had seen two general practitioners and a psychologist. He had mostly seen these practitioners in recent years, particularly when he needed a certificate to submit in relation to the Court case for his non-lodgment of taxation returns.
Medical Evidence
17. A report was provided by Dr Kendall Johnston dated 4 August 2005 where he diagnosed the applicant as having depression and anxiety conditions. He also said that he displayed obsessive-compulsive tendencies which was “probably a helpful thing in regards to being an accountant”. He said the applicant needed medication and on-going counselling. He thought the applicant placed his clients' needs ahead of his own priorities. His report also indicated that the applicant was “trustworthy” and an “honourable person” despite his psychiatric condition.
18. A further report (undated) was provided by Dr Phillip Frauenfelder. That report also diagnosed Mr Marzol with an anxiety disorder and depression.
19. On 18 August 2005, Mr Clinton Laurence, of Laurence and Associates, Psychologists, also provided a report for the applicant. It appears that this was intended for use in his court appearance in the Magistrates Court. Mr Laurence tested Mr Marzol with a psychometric test called the Beck Depression Inventory II - and concluded that Mr Marzol’s result on this test classified him as having “severe depression”. Mr Laurence diagnosed Mr Marzol as having a combination of depression and anxiety and also having the psychiatric condition of adjustment disorder.
Submissions
20. Mr Horneman-Wren underscored the applicant’s psychiatric condition and that the applicant had always looked after his clients first. He referred the Tribunal to the decision of VBY v Tax Agents’ Board of Victoria [2006] AATA 103 which compared a number of authorities dealing with special circumstances.
21. Ms Brennan submitted that the applicant’s evidence does not display “special circumstances”. She referred the Tribunal also to the VBY case (supra) and to Tosio v Tax Agents’ Board of New South Wales [2005] AATA 1015 and to Stubbings v Tax Agents’ Board of New South Wales [2006] AATA 846. It was submitted that these authorities indicate misfortune can amount to “special circumstances”, but only where it is shown that the applicant has turned his circumstances around. It was submitted that there was not evidence of this. She also referred to the case of Re Su and the Tax Agents Board of Australia (1982) 82 ATC 4284 where it was held that a Tax Agent who did not attend properly to his own taxation affairs may not be a fit and proper person for registration.
Consideration
22. I have taken account of all the legislation and case law relevant to formulating a determination in this matter.
23. In considering the application, Mr Marzol impressed the Tribunal as a witness of truth. He also clearly has a withdrawn personality and the Tribunal formed the view he was not a strong or assertive person. Reference in one of the medical reports to his having features of obsessive-compulsive disorder were confirmed by his description of his work practices. There was a series of difficult interpersonal relations within the applicant’s firm. Even junior staff apparently treated him with some disdain or took advantage of his unassertive nature and/or his mood disorder.
24. That context is seen in the light of someone who has been a practicing accountant for just over 20 years and seems to have been a person who is more comfortable dealing with detailed information for his clients. Indeed, the Tax Agents’ Board performance report attached to Exhibit 2 reveals essentially a high rate of lodgement of returns on behalf of his clients, and in all cases were higher than the national average.
25. Unfortunately, despite the applicant’s perception that his downward spiral commenced in 1999 with the commencement of GST, his personal annual tax returns have been late for the majority of the period from 1988 to 2006 (with the exception of the years 1995, 1997 and 2000). Clearly, his delay in the years 2001, 2002 and 2003 were exceptionally late, resulting in prosecutorial action being taken against him for failure to lodge those returns. Nevertheless, it is clear that the applicant has had some difficulties since 2000 both in his personal life and in his professional practice. This has undoubtedly had a deleterious effect on his psychological condition. Nevertheless, it is apparent that his record of service to clients has always been high (and higher than national average on the evidence available).
26. In considering whether he is a ‘fit and proper person’, the Tribunal notes that the applicant failed to lodge his personal returns for the years 2001, 2002 and 2003. He was convicted of serious tax offences in respect of the second and third offences as prescribed by s 8C and 8E of the Taxation Administration Act 1953, and by virtue of the definition of “serious taxation offence” in section 251A ITAA, as the second and third offences had the potential to incur fines of greater than $2,000. But, when the matter was heard by the Magistrates Court in Brisbane on 25 August 2005, the learned Magistrate determined under s 19B of the Crimes Act 1914, that the applicant should be discharged with no conviction recorded; and that he should be released on a 12 month good behaviour bond on his own recognizance with a surety of $1,000.
27. It is apparent that the Tax Agents’ Board was most accommodating and co-operative in allowing Mr Marzol to get his affairs into order and to provide time for him to rectify the outstanding debts. The Board could not be said to have acted peremptorily in any respect. But it finally decided not to re-register the applicant. The Board met in November 2005, February 2006 and finally in May 2006, where, after receiving reports from its staff and after a good deal of communication between the applicant and the Board, the Board clearly felt that the applicant had not provided either adequate explanation or sufficient action by that time to justify his re-registration (T38 and T39). The debts (which do not relate to his personal income tax returns) have since been paid. At the hearing, the applicant said his 2005 return had been completed but his 2006 return had not been completed due to other apparent errors in his office. He intended to do this himself and lodge it as soon as possible.
28. The Tribunal finds that Mr Marzol’s systems and staffing position have improved but that like most systems, they are not perfect all of the time. It has been revealed however, that he is not somebody who copes well with supervision of subordinates and ensuring effective output from those who work for him. He clearly feels more comfortable in the capacity of a technical expert rather than as a manager. His mood disorder or the obsessive traits in his personality, as well as placing greater emphasis on his clients’ affairs rather than his own, (even in the knowledge that it was a critical period for him), seems to have resulted in his personal taxation returns being accurate but being submitted later than the statutory time limits.
·Are there “Special Circumstances”?
29. In answering this question, the Tribunal must determine whether circumstances exist which would justify the serious taxation offences being disregarded by the Tribunal in determining whether Mr Marzol is a fit and proper person to be registered as a Tax Agent.
30. “Special circumstances” is not statutorily defined. But in finding whether special circumstances exist, the Tribunal “…must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate”: Re Ivovic and Director-General of Social Services (1981) 3 ALN 61 at n97.
31. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 “[a]n expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special”.
32. The question here is whether there were circumstances in the applicant’s life which could be regarded as outside the ordinary vicissitudes of life and could be regarded as unusual or exceptional such as for them to be described as “special circumstances”.
33. The applicant claimed that the implementation of GST is a “special circumstance” but is not, in the Tribunal’s view, a special circumstance in itself. The majority of public accountants at that time were subjected to similar demands.
34. However, the applicant’s psychiatric disorder (his anxiety and depression) does seem to constitute special circumstances when combined with or aggravated by a series of employee issues, concerns over his father’s surgery, heart attack and strokes, medical issues with his mother-in-law and involvement of his daughter in that regard. In addition, threats from a former employee against the applicant and his family and consequential legal costs, emotional strain on his family situation, his own medical problems including ongoing anxiety and depression during the period in question, as well as his throat surgery and a lengthy period where he was debilitated with a virus relating to glandular fever, have cumulatively contributed to the “special circumstances”.
35. His inability to address many issues in a timely way, particularly when questioned by the Tax Agents’ Board, notwithstanding his own vulnerability if he did not do so, was characteristic of his mood disorders. This may also explain his history of tardiness in compliance with respect to his own personal tax returns from the time he commenced in practice on his own (although no finding is made in that regard and is not a factor taken into account in reaching a determination in this matter). I therefore find that the facts here have “a particular quality of unusualness” (see Re Beadle above) that justifies them being regarded as “special circumstances” under s 251BC(3)(c) ITAA.
· Is he a fit and proper person?
36. The disqualifying factors which prevent somebody being regarded as a “fit and proper person” are set out in s 251BC(1)(d) and (e) ITAA, where it is stated that:
“…a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:
…
(d)the person is not of good fame, integrity and character;
(e)the person has been convicted of a serious taxation offence during the previous 5 years;”.
37. The starting point is often regarded as the finding in Carbery and Associates Pty Ltd and Tax Agents’ Board of Queensland [2001] AATA 107 where it was held at [21] that a Tax Agent’s failure to lodge their own personal income tax returns could be regarded as a “gross dereliction of a fundamental duty”. Other important principles in assessing facts against this statutory provision are set out in Re Su and Tax Agents’ Board (1982) 82 ATC 4284, where Davies J said at 4286:
“The function of a tax agent is to prepare and lodge income tax returns for other persons. A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently”.
38. Another important principle was elucidated in Pappalardo v Tax Agents’ Board of Victoria [2003] AATA 990 where at paragraph 44 it was stated that:
“Protection of the public is of course a major object of any system of regulation of a profession or occupation. If tax agents are not competent at their work the public should be protected from relying on them for performance of the tasks required of a tax agent. Similarly the public is entitled to expect that a tax agent’s professional conduct will be appropriate”.
39. I also note the analysis and contrast in cases referred to the Tribunal by both Counsel in the case of VBY v Tax Agents’ Board of Victoria [2006] AATA 103. I also note in the case of Reichert v Tax Agents’ Board of New South Wales [2005] AATA 188 that the conviction related to 15 years of non-lodgment of taxation returns. In the present case, there were three years of outstanding returns. Since the period relating to the offences, I find that the applicant has turned much of his practice around with greater stability of staff but, even with that, it is subject to the variations in staffing ability and attitudes which will result in errors being made periodically. The applicant’s lack of strong management and decision-making capacity has made this a somewhat longer process than might ordinarily be expected.
40. In reviewing the evidence of how well Mr Marzol satisfies the statutory provisions above, I find no issue being raised about his technical knowledge or ability. The applicant himself said that clients have never been disadvantaged and this appears to be borne out by the statistics in the Tax Agents’ Board’s Performance Report attached to Exhibit 2. No evidence to show that he could not competently “prepare income tax returns and transact business on behalf of taxpayers in income tax matters”, in any technical sense is apparent. Equally, no evidence has been presented that his fame or integrity or character, in the sense that he had a poor reputation as a tax agent, has been presented. Had he been pursued legally and bankrupted, his reputation would have been seriously tarnished. However, that did not occur, despite the earlier threat by the ATO. Apart from the need for having competent management in his office and ensuring he had an independent professional to prepare his own personal tax returns, there seems to be no evidence that others could not entrust their taxation affairs to Mr Marzol. There was certainly no evidence of his being the subject of a complaint to the Board about his professional affairs, with the exception of the complaint by the ATO about his outstanding remittance and lodgement of his personal taxation returns, which are the subject of the present application. There was also no suggestion by any party that he had failed to pay his own personal taxation obligations.
41. There is no lack of demonstration of responsibility towards his clients or the public throughout this period. The management of his own personal taxation affairs had been neglected due to his personal style of giving priority to his clients. The management of his taxation affairs was also adversely impacted by his mood disorder.
42. The Tribunal notes that the applicant’s practice management and his strategy of using another practitioner to prepare his own personal annual income tax returns now makes him less vulnerable for the future.
43. I note also that the Board approached the case on the basis of the applicant having a good reputation for service to the public, but was concerned with the tardiness in remitting tax withholdings and the conviction for failing to lodge his own personal (as opposed to clients’) tax returns. I note also that the learned Magistrate saw fit not to record a conviction in this matter. It is important that the Tax Agents’ Board should exercise due diligence in relation to standards to be adhered to by Tax Agents, as it has done in this case. Mr Marzol’s management of his own personal tax affairs is clearly important in this assessment.
44. However, in considering all of the circumstances of the applicant over the period including the health and medical issues relating to himself and his family (aggravated by practice issues which are not themselves special circumstances), the Tribunal finds that “special circumstances” have existed which significantly contributed to the applicant’s position. The Tribunal therefore determines that “special circumstances” exist and taking account of his good record of attending to clients’ taxation matters, disregarding the conviction and omissions of the applicant for the period in question is justified (s 251BC(3) ITAA). As a result, the Tribunal finds that the applicant is a fit and proper person to practice as a Tax Agent as at 28 November 2006.
45. The Tribunal determines:
(i)that the decision under review should be set aside.
(ii)the applicant is a fit and proper person to practise as a Tax Agent.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member
Signed: Fiona Kamst
Legal Research Officer
Date/s of Hearing 28 November 2006
Date of Decision 27 February 2007
Counsel for the Applicant Mr AAJ Horneman-Wren
Solicitor for the Applicant Lehns, Solicitors
Counsel for the Respondent Ms M Brennan
Solicitor for the Respondent Australian Government Solicitor
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