Mendonca and Tax Practitioners Board

[2017] AATA 2177

Mendonca and Tax Practitioners Board [2017] AATA 2177 (10 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/4963

Re:Gerard Mendonca

APPLICANT

AndTax Practitioners Board

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:10 November 2017

Place:Sydney

The Tribunal does not have jurisdiction to review the decision of the Respondent dated 25 July 2017 and the application is therefore dismissed.

..................[sgd]..................................................

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – whether tribunal has jurisdiction to review – applicant sought review of decision about power to investigate complaint – no enactment permitting an application to be lodged for review of that decision – no jurisdiction to review decision

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25

Tax Agent Services Act 2009 (Cth) ss 60-15 & 70-10, subdiv 40-A

REASONS FOR DECISION

Senior Member A Poljak

10 November 2017

1. Mr Gerard Mendonca, the applicant, seeks review of a decision made by the Tax Practitioners Board (“the Board”) on 25 July 2017. In that decision, the Board decided not to take any further action in relation to a complaint made by the applicant against two taxation agents because it found that the allegations did not constitute tax agent services and was therefore outside of the Board’s jurisdiction (“the decision”).

2. These proceedings concern whether the Tribunal has jurisdiction to review the decision.

   RELEVANT LEGISLATIVE PROVISIONS

3. The Tribunal has no general power to review decisions; it may only review decisions in relation to which jurisdiction has been conferred on it by an enactment: Administrative Appeals Tribunal Act1975 (Cth), s 25.

4. The Tax Agent Services Act 2009 (Cth) (“the Act”) is such an enactment. It is the enactment under which the Board is established. Section 60-15 sets out the Board’s functions which are:

   “(a) to administer the system for the registration of *registered tax agents, BAS agents and tax (financial) advisers; and

   (b) to investigate:

   (i) applications for registration;

   (ii) conduct that may breach this Act; and

   (c) to impose sanctions for non-compliance with the *Code of Professional Conduct; and

   (d) to issue, by legislative instrument, guidelines to assist in achieving the functions mentioned in paragraphs (a), (b) and (c); and

   (e) such other functions as are conferred on the Board by this Act, the regulations or any other law of the Commonwealth; and

   (f) to do anything incidental or conducive to the performance of its functions.”

5. Consistent with those functions, the Act gives the Board specific powers to consider applications for registration as a registered tax agent and to make a range of decisions including granting or refusing applications, imposing conditions on registration and terminating or suspending registration.

6. Section 70-10 identifies specific decisions that may be made by the Board and that are reviewable by the Tribunal. They are:

   “(a) a decision under section 20-25:

   (i) to reject an application for registration (including renewal of registration); or

   (ii) to specify a condition to which registration is subject;

   (c) a decision under section 20-40 to refuse to vary a condition to which registration is subject;

   (d) a decision under subsection 20-50(1) not to determine a shorter period for making a renewal application;

   (e) a decision under Subdivision 30-B or 40-A to terminate registration;

   (f) a decision under section 30-20 to make an order or to specify a time period in respect of an order;

   (g) a decision under section 30-25 to suspend registration (including a decision as to the length of the suspension);

   (ga) a decision under Subdivision 40-A not to terminate registration;

   (h) a decision under section 40-25 to determine a period during which an application for registration may not be made;

   (i) a decision under subsection 60-125(4) to extend the period of time within which an investigation is to be completed.”

   CONSIDERATION

7. The applicant alleges that had the Board investigated his complaint, the Board would have made a decision to terminate the registration of the two tax agents under subdivision 40-A of the Act. Accordingly, he contends that the decision was one “not to terminate” the registration of the tax agents, meaning that it fell within the Tribunal’s jurisdiction for review pursuant to s 70-10(ga).

8. In my mind, this is a long bow to draw. The decision is merely an initial step in determining the Board’s power to review the complaint made by the applicant. It is true to say that if the complaint was within the Board’s jurisdiction and well founded, cancellation is one such function which the Board may impose. However, as acknowledged by the applicant, this is a step which may be considered following an investigation. I have no evidence that the Board undertook an investigation in this matter pursuant to s 60-95 of the Act.

9. A decision made on a complaint about whether the allegations constitute tax agent services is not a decision that is referred to in s 70-10. Nor is a decision of the Board that the matter falls outside of its jurisdiction. Accordingly, this Tribunal does not have jurisdiction to review the decision of the respondent dated 25 July 2017. The application, therefore, should be dismissed.

10. In any event, the Board has advised, by letter dated 18 September 2017 that the Board’s decision has been referred for independent review. This is consistent with the review rights identified in the letter dated 25 July 2017.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

......................[sgd]..............................................

Associate

Dated: 10 November 2017

Date(s) of hearing:	9 October 2017
Applicant:	In person
Respondent:	T Williams, Tax Practitioners Board