Oleshko and Tax Practitioners Board - [2016] AATA 237

Oleshko and Tax Practitioners Board [2016] AATA 237 (8 April 2016)

Division

TAXATION & COMMERCIAL DIVISION

File Number(s)

2015/0572

Re

Olesia Oleshko

APPLICANT

And

Tax Practitioners Board

RESPONDENT

DECISION

Tribunal
Senior Member CR Walsh

Date 8 April 2016

Place Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh...........
Senior Member CR Walsh
CATCHWORDS
TAX AGENTS - application for registration as a tax agent rejected by Board – applicant did not satisfy eligibility requirements for registration as a tax agent – applicant not engaged in equivalent of two years full-time “relevant experience” in the preceding 5 years - decision under review affirmed
LEGISLATION
Tax Agent Services Act 2009 – s 20-5(1) – s 20-5(1)(b) - s 20-25(1) – s 50-5 – s 50-10 – s 50-15 - s 90-5(1)
Tax Agent Services Regulations 2009 – reg 8 - item 201, item 202, item 203, item 204, item 205 and item 206 of Division 1 of Part 2 of Schedule 2 – item 207 of Division 2 of Part 2 of Schedule 2
CASES
Re Harris and Tax Practitioners Board (2014) 142 ALD 370
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467
REASONS FOR DECISION
Senior Member CR Walsh
8 April 2016
INTRODUCTION

This application concerns whether Ms Oleshko is eligible for registration as a “tax agent” under s 20-5(1) of the Tax Agent Services Act 2009 (TASA).
On 23 June 2014, Ms Oleshko lodged an online application with the Tax Practitioners Board (Board) for registration as a “tax agent” under s 20-5(1) of the TASA.
On 11 December 2014, the Board rejected Ms Oleshko’s application for registration as a “tax agent” pursuant to s 20-25(1) of the TASA because it was not satisfied that Ms Oleshko met the eligibility requirements for registration as a tax agent under s 20-5(1) of the TASA.
In particular, the Board was not satisfied that Ms Oleshko met s 20-5(1)(b) of the TASA which provides that the requirements prescribed by the Tax Agent Services Regulations 2009 (TASR) including, but not limited to, requirements relating to “qualifications” and “experience” be met (Decision)[1].
[1] The Board notified Ms Oleshko of the Decision by letter dated 6 January 2015.
In the Decision, the Board made the following “Findings” and reached the following “Conclusions”:
Findings
14.In making its decision to reject your application, the Board considered all of your qualifications and experience, including your circumstances as detailed above and made the following findings in relation to your application:
· there is no evidence before the Board, that has been independently substantiated, that you have worked under the supervision and control of a registered tax agent for the requisite time duration under Item 203 in Schedule 2 of the TASR.
· your work under the supervision and control of registered tax agents Peter Manolas and Graham Leslie Burrows during the period of August 2006 and May 2009, is not within…

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: [2016] AATA 237
Decision Date: 8 April 2016

CaseChat Overview and Summary

In the case of Oleshko v Tax Practitioners Board, the applicant, Ms Oleshko, sought to challenge the decision of the Board to reject her application for registration as a tax agent. The primary issue before the court was whether Ms Oleshko satisfied the eligibility requirements for registration, specifically the requirement for relevant experience.

The legal issues that the court had to decide included whether the Tribunal could consider evidence of experience gained by Ms Oleshko after the Board's decision, and whether the Tribunal could include experience gained more than five years before the date of the Tribunal's decision. The court examined the provisions of the Tax Agent Services Act 2009 (Cth) and the Tax Agent Services Regulations 2009 to determine the scope of relevant experience that could be taken into account.

The court concluded that the Tribunal could only consider experience gained within the preceding five years from the date of its decision. This meant that work performed by Ms Oleshko more than five years before the Tribunal's decision was not relevant. Although the court acknowledged that Ms Oleshko had obtained a Bachelor of Business degree and had undertaken some recent work experience, it found that the total relevant experience did not meet the statutory requirement of at least 12 months full-time equivalent experience.

The court affirmed the decision of the Board, finding that Ms Oleshko did not meet the experience requirements for registration as a tax agent. The court's reasoning was based on the statutory framework and the evidence presented, which did not demonstrate that Ms Oleshko had accumulated the requisite relevant experience within the prescribed timeframe.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Call Log for the Board’s call to Mr Gerrans records the following:The call was very brief as Mr Gerrans stated he would not endorse any work completed by the applicant as she was untrustworthy.Evidence of “relevant experience” gained by Ms Oleshko Subject to any clear legislative indication to the contrary, the task of the Tribunal is to make the correct and preferable decision in the circumstances as they exist at the time of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467. There is nothing in the TASA (or the TASR) expressly indicating that the Tribunal should make its decision concerning whether an individual is eligible for registration as a registered tax agent under s 20-5(1) of the TASA other than at the time of making its decision. As such, the “preceding” 5 years in which Ms Oleshko must have gained her “relevant experience” within the meaning of item 207 of the TASR and for the purposes of item 203 of the TASR and, it follows, s 20-5(1)(b) of the TASA, ends when the Tribunal makes its decision: Shi and see also the Tribunal’s recent decision in Re Harris and Tax Practitioners Board (2014) 142 ALD 370. Put differently, the Tribunal may have regard to all of the evidence placed before it up to the date of its decision, including any evidence about study or work completed by Ms Oleshko after the Decision of the Board. However, the Tribunal may not have regard to any work performed by Ms Oleshko more than 5 years before the date of its decision as that “experience” will not fall within the “preceding” 5 years for the purposes of item 203 of the TASR and, it follows, s 20-5(1)(b) of the TASA. Consequently, the Tribunal is able to consider the following evidence when determining whether Ms Oleshko satisfies item 203 of the TASR and, it follows, s 20-5(1)(b) of the TASA.· the Bachelor of Business (Major in Finance) awarded to Ms Oleshko by Edith Cowan University (Bachelor Degree) after the Decision was made; and· the “4 months” of work (including BAS preparation) under the supervision of a registered tax agent Ms Oleshko claims to have performed since “late 2015” (Recent Experience) However, the Tribunal is not able to consider the 9 months of work Ms Oleshko performed under the supervision of Mr David Gerrans between 13 August 2009 and 21 May 2010 (discussed in paragraph 28 above), because that work precedes the date of the Tribunal’s decision by more than 5 years.Work for Mr Justin Felter The Tribunal accepts, based on the Felter SRE (refer to paragraph 15 above) that the 3.5 months of work Ms Oleshko performed under the supervision of Mr Felter (i.e. between 30 July 2012 and 16 November 2012) (Felter Work) may be treated as “relevant experience” (within the meaning of item 207 of Schedule 2 to the TASR) in determining whether Ms Oleshko meets one or more of the prescribed Regulations in the TASR, including, relevantly, item 203 of Schedule 2 to the TASR.

Decision

Reasons for decision

Even if the Tribunal were satisfied that the Bachelor Degree is sufficient to satisfy items 201(a) or 202(a) of Part 2 of Schedule 2 to the TASR and that the Recent Experience should be treated as work by Ms Oleshko under the supervision and control of a tax agent registered under the TASA for the purposes of item 207(c) of Schedule 2 to the TASR or work “of another kind approved by the Board” for the purposes of item 207(c) of Schedule 2 to the TASR (which it is not), the Tribunal still could not be satisfied that Ms Oleshko has enough “relevant experience” to meet the “experience” requirements prescribed by the TASR. This is because if the 4 months of Recent Experience is added to the 3.5 months of Gerrans Work, the result would only be 7.5 months of experience and the “experience” requirements prescribed in Division 1 of Part 2 of Schedule 2 to the TASR each require the equivalent of at least 12 months full-time, relevant experience in the “preceding” 5 years.DECISION For the above reasons, the Tribunal affirms the Decision.

Ratio Decidendi

Legal Principle Established

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Division	TAXATION & COMMERCIAL DIVISION
File Number(s)	2015/0572
Re	Olesia Oleshko
APPLICANT
And	Tax Practitioners Board
RESPONDENT

Tribunal	Senior Member CR Walsh
Date	8 April 2016
Place	Perth