Nwokeiwu and Tax Practitioners Board

This matter concerned an application for a stay of a decision by the Tax Practitioners Board (TPB) to terminate Mr. Nwokeiwu's registration as a tax agent. The dispute arose from an Australian Taxation Office (ATO) review and audit concerning Mr. Nwokeiwu's income tax return for the Krumn Trust for the 2019 tax year, which identified significant discrepancies in reported net income and GST. Subsequently, the TPB commenced a preliminary inquiry into Mr. Nwokeiwu's conduct, including allegations of false and misleading statements, underreporting income, GST and fringe benefits tax shortfalls, and consistent late lodgement of returns and business activity statements. The application for a stay was heard by Mr. Rob Reitano, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant an interim stay of the TPB's decision to terminate Mr. Nwokeiwu's tax agent registration pending the final hearing of his appeal. In determining this, the Tribunal was required to consider established principles for granting a stay, including the prospects of success of the applicant, the consequences of refusing or granting the stay for the applicant and the respondent, the public interest, and whether refusal of the stay would render the final relief nugatory. The Tribunal also had to assess the time between the stay application and the final hearing, and any other relevant matters.

The Tribunal found that Mr. Nwokeiwu's prospects of success on the merits of his appeal were not good, based on the evidence and submissions presented. The evidence regarding late lodgements appeared to be documentary and contrary to Mr. Nwokeiwu's own declarations to the TPB, and the ATO's audit findings concerning unreported income, GST, and FBT also appeared straightforward. The Tribunal noted that Mr. Nwokeiwu's submissions contained concessions that he might be ultimately unsuccessful, suggesting a reduced period of cancellation or suspension, which indicated an acknowledgement that his case was not strong. Furthermore, the Tribunal considered that the public interest weighed against granting a stay, as the TPB, acting as the regulator, had made an adverse finding against Mr. Nwokeiwu, concluding that the public needed protection by terminating his registration. The Tribunal held that allowing Mr. Nwokeiwu to continue practising, even for a limited time, would damage public trust and confidence in tax agents, which is a core objective of the relevant legislation.