Oleshko and Tax Practitioners Board
[2016] AATA 237
•8 April 2016
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 the previous 5 years, for the purposes of item 203 in Schedule 2 to the TASR.
· your work as Support Consultant for Sage Handicroft, during the period 26 May 2010 to 4 May 2012, was not accepted as work of another kind approved by the Board, for that work to constitute ‘relevant experience’ under Item 207 in Schedule 2 to the TASR.
Conclusions
15.Therefore, in considering your application in accordance with Item 203 in Schedule 2 to the TASR, the Board was not satisfied that you have been engaged in the equivalent of two years full-time, relevant experience in the preceding five years.
16.Further, the Board was of the view that your experience did not include substantial involvement in the provision of tax agent service, equating to two years of full-time, relevant experience in the previous five years.
17.Accordingly, the Board rejected your application for registration as a tax agent under subsection 20-25(1) of the TASA, as it was not satisfied that you meet the eligibility requirements for registration as a tax agent under subsection 20-5(1) of the TASA, in particular under paragraph 20-5(1)(b) of the TASA.
On 6 February 2015, Ms Oleshko applied to Tribunal for a review of the Decision.
Ms Oleshko’s main contention is that in reaching the Decision the Board should have approved her work as a “Support Consultant” for Sage HandiSoft Pty Ltd (Sage Handisoft) in the period 26 May 2010 to 4 May 2012 as “work of another kind” for the purposes of meeting the “relevant experience” requirement in item 203 of Division 1 of Part 2 of Schedule 2 to the TASR: refer to paragraph 11 below. In contrast, the Board maintains the position adopted by it in the Decision, namely that Ms Oleshko is not eligible for registration as a tax agent under s 20-5(1) of the TASA.
CONSIDERATION
Eligibility for registration as a registered tax agent
Section 20-5 of the TASA deals with eligibility for registration as a registered tax agent or as a BAS agent. Section 20-5(1) of the TASA states:
Individuals
(1) An individual, aged 18 years or more, is eligible for registration as a *registered tax agent or BAS agent of the Board is satisfied that:
(a) The individual is a fit and proper person; and
(b)The individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registrations as a registered tax agent or BAS agent. [Emphasis added]
Section 20-5(1)(b) of the TASA draws a distinction between the requirements prescribed by the TASR which relate to “qualifications” and those which relate to “experience”. Both requirements must be met in order that a person be eligible for registration as a tax agent.
Regulation 8 of the TASR, titled “Eligibility for registration as a tax agent – prescribed requirements” states:
For paragraph 20-5(1)(b) of the Act, in respect of registration as a registered tax agent, an individual must meet at least one of the requirements set out in Division 1 of Part 2 of Schedule 2. [Emphasis added]
Division 1 of Part 2 of Schedule 2 to the TASR contains the following “requirements”:
· item 201 (titled “Tertiary qualifications in accountancy”);
· item 202 (titled “Tertiary qualifications in another discipline – specialists”);
· item 203 (titled “Diploma or higher award”);
· item 204 (titled “Tertiary qualification in law”);
· item 205 (titled “work experience”); and
· item 206 (titled “Membership of professional association”).
Of particular relevance to this case is item 203 of Division 1 of Part 2 of Schedule 2 of the TASR, which states:
Diploma or higher award
203 A requirement is that:
(a) the individual has been awarded a diploma or higher award from:
(i) a registered training organisation; or
(ii) an equivalent institution:
in the discipline of accountancy; and
(b)the individual has successfully completed a course in Australian taxation law that is approved by the Board; and
(c)the individual has been engaged in the equivalent of 2 years of full-time, relevant experience in the preceding 5 years; and
(d)if the application is made on or after 1 March 2013, and the individual was not previously registered under Part VIIA of the Income Tax Assessment Act 1936, the individual has successfully completed a course in commercial law that is approved by the Board. [Emphasis added]
Item 207 of Division 2 of Part 2 of Schedule 2 to the TASR defines the expression “relevant experience”, for the purposes of item 201(d), item 202(c), item 203(c), item 204(b), item 205(b) and item 206(b) of Division 1 of Part 2 of Schedule 2 to the TASR as follows:
Meaning of relevant experience
207 For Division 1, relevant experience means work by an individual:
(a) as a tax agent registered under the Act; or
(b)as a tax agent registered under Part VIlA of the Income Tax Assessment Act 1936; or
(c)under the supervision and control of a tax agent registered under the Act; or
(d)under the supervision and control of a tax agent registered under the previous regulatory regime contained in Part VIIA of the Income Tax Assessment Act 1936; or
(e) as an Australian legal practitioner; or
(f) of another kind approved by the Board;
in the course of which the individual’s work has included substantial involvement in 1 or more of the types of tax agent services described in section 90-5 of the Act, or substantial involvement in a particular area of taxation law to which 1 or more of those types of tax agent services relate. [Emphasis added]
Section 90-5(1) of the TASA defines what is meant by the expression “tax agent service” as follows:
(1) A tax agent service is any service:
(a) that relates to:
(i)ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or
(ii)advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or
(iii)representing an entity in their dealings with the Commissioner; and
(b)that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes:
(i)to satisfy liabilities or obligations that arise, or could arise, under a taxation law; or
(ii)to claim entitlements that arise, or could arise, under a taxation law. [Emphasis added]
Ms Oleshko’s application for registration as a registered tax agent
Ms Oleshko provided various documentation in support of her online application for registration as a tax agent, dated 23 June 2014, including:
(i)a “Statement of relevant experience for tax agent”, dated 18 April 2013, declared by registered tax agent Mr Justin Felter, for the period from 30 July 2012 to 16 November 2012 (Felter SRE). The Felter SRE declared by Mr Felter stated that during Mr Oleshko’s employment with him she:
completed taxation returns and displayed technical knowledge and understanding of taxation concepts to a satisfactory level;
(ii)a “Statement of relevant experience for tax agent”, dated 28 April 2013, declared by registered tax agent Mr David Gerrans for the period from 13 August 2009 to 21 May 2010 (Gerrans SRE). The Gerrans SRE declared by Mr Gerrans stated that during Ms Oleshko’s employment with him she prepared tax returns for individuals, partnerships and companies and liaised with the ATO on behalf of clients in relation to outstanding debts and lodgements and that
whilst she was employed she required strict supervision and [had] very limited scope for self-regulation of work;
(iii)a letter from Mr Alan Osrin, Managing Director – Sage HandiSoft, dated 18 August 2014, stating:
This letter is to confirm that Ms Olesia Oleshko was employed on a permanent full-time basis with Handisoft Software Pty Ltd [i.e. Sage HandiSoft] in the position of Support Consultant.
…….for the period of 26th May 2010 until 4th May 2010.
(iv)the following “Position Description” of her role as a “Support Consultant” at Sage HandiSoft from Ms Oleshko’s employment agreement with Sage HandiSoft:
Overall objective
To resolve client issues both perceived and real with the program, while striving to provide a high level of customer service and satisfaction, and by adopting a fair and ethical work practice to best serve our customers, our employer and our fellow employees.
Key objectives to achieve overall objective
Resolving issues that clients' encounter
Taking calls and or answering written communication.
Improving knowledge in all programs.
Improving call management.
Improving queue management.
Make necessary adjustments for the "Busy" period.
1. Resolving issues that clients encounter
The main role is to resolve issues that clients encounter, whether real or perceived with the programs.
2. Taking calls and or answering written communication
The main method of resolving client issues is by answering calls into the support help line, and / or replying to customers' written communication.
3. Improving knowledge in all programs
To assist the customers and ensure that they are given the correct answers, the support consultant needs to constantly improve their knowledge about the products and also be aware of external factors that may affect the products, for example, any tax legislation changes.
Knowledge can be improved by:
•Reading User manuals
•Reading Knowledge Base articles
•Reading publications such as the Master Tax Guide, XYZ model of Financial accounts
•Research using the Internet, with particular reference to the ATO, ASIC, and AASB web sites.
The crux of improving knowledge is by getting a better understanding of the mechanics of the programs rather than learning answers by rote.
4. Improving call management
Call management or phone etiquette, calls for a common sense approach of always being polite and courteous to the customer and understanding that they have called in as they have an issue that they need to have resolved. We need to bear in mind that in most cases they are calling with a negative perception as they believe the program does not do what they expected it to do, and the support consultant needs to address the client in such a way that this negative is turned into a positive experience by the end of the call.
The support consultant needs to strive to resolve the issue while on the phone, however, often you may need to explore the issue further and will have to get back to the client at a later stage.
We need to set realistic deadlines for getting back to customers, and we always need to communicate any delays so that they are aware of what is happening with their query.
Points to bear in mind:
• Keep a cool head
•Listen to what the client has to say
•Have empathy with the customer
•Work through the issue in a logical and effective manner
•Try and resolve the issue in a polite and courteous manner
5. Improving queue management
The ultimate goal is to keep the queue wait times to a minimum, while not rushing the current client, before they have had their issue resolved or at least logged for future call back;
(v)a letter from Ms Oleshko to the Board, dated 20 November 2014, detailing Ms Oleshko’s academic qualifications and relevant experience and attaching a copy of her employment agreement with Sage HandiSoft. This letter included the following information:
………I have more than seven years of full–time experience working as a Tax Accountant including two years full-time for an IT accounting software company, Sage HandiSoft.
…………….
Experience Timeline
21.08.06-14.03.08 (20 months) at Barrow Marry Partners.
Position: Assistant Tax Accountant (Statement of relevant experience for tax agent sign by Principle attached).
22.05.09 (14 months) at AMD Chartered Accountants.
Position: Assistant Tax Accountant (Statement of relevant experience for tax agent sign by Principle attached).
21.05.10 (9 months) at DJG Consulting Pty Ltd.
Position: Tax Accountant (Statement of relevant experience for tax agent sign by Principle attached).
4.05.12 (24 months) at Sage Handisoft.
Position: Support Consultant on Tax and Accounting software (letter sign by Managing Director attached).
16.11.12 (4 months - tax season) at Just Tax and Structures.
Position: Tax Accountant (Statement of relevant experience for tax agent sign by Principle attached).
20.06.13 (7 months) Full time study ‘Bachelor of Business with double major in Accounting and Finance' at ECU - Edith Cowan University Perth WA.
March 2013 (ongoing) Established own accounting services business 'Hagen Taxation Services'.
1.07.13-1.12.13 (5 months - tax season) at TaxN and DJG Consulting Pty Ltd. Position: Tax Accountant contract work (PAYG payment summary for end 2014 financial year, sign by Principle attached).
September 2013 (ongoing) NTAFF member. Ongoing professional development including seminars, online training videos, subscriptions magazines, tax law changes.
30.01.14 - 20.06.14 (5 months) Full time study 'Bachelor of Business with double major in Accounting and Finance' at ECU - Edith Cowan University Perth WA. Also studied 3 units at TAFE for Tax Practitioners Board.
……………
Work Experience Detail
1.07.2013-1.12.13 (5 months - tax season) at TaxN and DJG Consulting Pty Ltd.
Position: Tax Accountant contract work.
This work was undertaken under Registered Tax Accountants, Mr Justin Felter and Mr David John Gerran.
I leased an office at Garden City Shopping Centre where I operated a full tax season, seven days per week from 8am - 8pm by myself.
My work responsibilities included:
- advertising to attract clients
- organising client appointments
- interviewing clients
- establishing relevant client documents
- completing tax returns
- billing clients
- banking
- follow-up with ATO enquiries
- forwarding client data to Mr Felter and Mr Gerran each day for checking and lodging returns
Each day I prepared Tax Returns for up to 10-15 clients averaging around 400 clients per month. I did returns for Individuals, Sole Traders, Companies, Trusts and Partnerships. It was a very busy and stressful time, but I loved it. It was great work experience.
26.05.10-4.05.12 (24 months) at Sage Handisoft.
Sage HandiSoft –
…………
My role as a Support Consultant included:
Assisting clients with problems: Accountants would enter their client's data into Sage's software but if something was incorrect the software would prevent them from lodging. A team of well-trained Support Consultants was available at Sage to give advice. Support was given over the phone but should a problem not be resolvable over the phone a client zip file was sent to the consultant who reviewed and resolved the issue.
For example there might have been a problem with a trust distribution. If not all the beneficiaries were set up correctly not all income were distributed correctly to beneficiaries according to tax law, or were Tax Accountants in trust will distributing tax losses which you cannot do for the trust, and so on.
Troubleshooting. Any errors identified were analysed by the Support Consultants. Should the software provide an unexpected result, the consultant used their knowledge of tax law to establish if the software was processing the data correctly. If it looked like it could be a "bug" it was documented and forwarded to the programming team for review.
Annual review. Sage programs are tailored to Australian tax law regulation. Each year the software was updated to follow tax updates. All Support Consultants were required to train and become experts on any updates in order to assist Sage's clients with the transition.
External liaison. The Support Consultants helped Sage's clients but also worked every day with the ATO and ASIC's to assist clients with electronic registration and reports.
Sage is very similar to the ATO's call centre where professional and knowledgeable staff take calls and try to help clients. The only difference between ATO support and Sage support consultants was that Sage was not allowed to give specific tax advice. [Emphasis added]
Ms Oleshko did not provide a “Statement of relevant experience for tax agent” to the Board in support of her online application for registration as a tax agent, dated 23 June 2014, either for her work with “TaxN” (under the supervision of Mr Felter) or her work with “DJG Consulting Pty Ltd” (under the supervision of Mr Gerrans) during the 5 month “tax season” period from 1 July 2013 to 1 December 2013 (refer to the paragraph immediately above), Accordingly, on 26 November 2014, the Board contacted both Mr Felter and Mr Gerrans by telephone to seek verification. Both Mr Felter and Mr Gerrans refused to verify any further work by Ms Oleshko.
The Call Log for the Board’s call to Mr Felter records the following:
I asked him if he had supervised the applicant’s work, to which he responded they did have a contract in place but Miss Oleshko was not complying with the contractual arrangements so he terminated the agreement after about 4 weeks. The applicant was supposed to be operating under the TaxN name which belongs to Mr Felter but instead she was trading under her own trading name “Hagen Taxation Services”. Mr Felter was not prepared to endorse the work of the applicant.
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.
This is because the Felter Work was “relevant experience” within the meaning of item 207(c) of Division 2 of Part 2 of Schedule 2 to the TASR and was performed less than 5 years before the date of the Tribunal’s decision on this application for the purpose of item 203(c) of Schedule 2 to the TASR.
However, for the following reasons, the Tribunal does not accept that any of the other work sought to be relied on by Ms Oleshko was “relevant experience” gained during the “preceding” 5 years of the Tribunal’s decision on this application within the meaning of item 207 of Schedule 2 to the TASR and for the purpose of item 203(c) of Schedule 2 to the TASR and, it follows, s 20-5(1)(b) of the TASA.
Work for Mr David Gerrans
Whilst it is open to the Tribunal to find that the 9 months of work Ms Oleshko performed under the supervision of Mr Gerrans (i.e. between 13 August 2009 and 21 May 2010) (Gerrans Work) was “relevant experience” for the purpose of item 207(c) of Schedule 2 of the TASR, the Gerrans Work was not “relevant experience” within the “preceding” 5 years of the date of the Tribunal’s decision for the purpose of item 203(c) of Schedule 2 to the TASR and, it follows, s 20-5(1)(b) of the TASA.
Work for Sage HandiSoft
As stated above, Ms Oleshko’s primary contention is that her work as a “Support Consultant” with Sage HandiSoft in the period 26 May 2010 to 4 May 2012 (Sage HandiSoft Work) should be approved by the Board as work “of another kind” under item 207(f) of Schedule 2 to the TASR (refer to paragraph 13 above) and for the purpose of meeting the “relevant experience” requirement in item 203(c) of Schedule 2 to the TASR (refer to paragraph 12 above).
In her Statement of Facts, Issues and Contentions, dated 10 July 2015 (Ms Oleshko’s SFIC), Ms Oleshko submits (at [32]-[35] and [36]) that during her employment at Sage HandiSoft she was “substantially involved” in many services that the Board itself considers constitute “tax agent services” (reference was made to the Board’s website which provides examples of “tax agent services”). Specifically, the Table contained in Ms Oleshko’s SFIC (at [36]) states that Ms Oleshko was “substantially involved” in the following kinds of “tax agent services” during her employment at Sage HandiSoft:
· preparing returns, notices, statements, applications or other documents about your client’s liabilities, obligations or entitlements under a taxation law (e.g. “Filled up tax returns”);
· preparing depreciation schedules on the deductibility of capital expenditure (e.g. “Assisted in preparing depreciation schedules”);
· giving clients advice about a taxation law that they can reasonably be expected to rely on to satisfy their taxation obligations; and
· dealing with the Commissioner (e.g. “Phoned, on behalf of clients, to the ATO to discuss clients; tax forms in order to find a solution for problems relating to filling or lodging the tax forms”).
In her Statutory Declaration, dated 10 July 2015, Ms Oleshko describes her role as a “Support Consultant” at Sage HandiSoft, as follows:
1.I was working at Sage Handi Soft for 2 years from May 2010 to May 2012. In the beginning I applied for an Accounting position, as Tax Accountant and Tax Accountant Assistant. At my first interview with Sage I was informed that Sage is IT company creating Accounting Software and they were looking for a person who had Tax Accounting experience and preferably who was working with Sage Handi Soft program. It would be an advantage for a candidate to have experience in filling up tax returns for Individual, Trusts, Companies, Partnerships, Superfund and so on, who knew how tax system was working, who had knowledge about tax law and tax regulation. I was told that IT experience was not required, that Sage could train IT knowledge in couple of months but Tax Accounting knowledge and experience will take longer than 2 years to teach and because of this they preferred to employ people who have Tax Accounting experience other than IT for this particular role.
2.My every day work duties at Sage were dealings with clients. Our clients were Tax Accountants all around Australia, most of them were registered tax agents. I as a Support Consultant worked every day on calls and dealt with clients by email. It was system very similar to the ATO when, for example, you try to fill up your tax return, say on internet by eTax, and if you don’t know what to do in any part of your tax form or you have any error in your tax form and with error you will not be able to lodge then you will call ATO for help. Help line at the ATO is very similar to Sage with only one small difference that Sage could not give tax advice but the ATO support can.
3.Every year in May and June before the commencing of the tax season at Sage all support consultants for hours and days have training on new tax updates and new tax law changes. Also during financial year every 3 to 4 months we had constant training on all accounting and tax law updates. It was our job requirements to know the tax law, how the tax law is operating and how we should apply the tax law. For best job performance and reputation of our company at Sage we was requite (sic.) to be at the same level with tax accountants.
4.Every day at Sage I worked with clients by phone and by email, also most of days I called to ATO and dealt with ASIC.
5.For instance, a Tax Accountant called me seeking assistance with their error and I tried to help them by telephone. If I could not help by phone, I asked a client (Tax Accountant) to email me their client data file. I explained to the client how to attach their client data, merge to file, attach to an email and send to me.
6.Next step, I received my client data file, merged this file to my system, which is Sage program. As soon I merged client file, I was able to see my client data file, for example Individual Tax return. I was able to see how Tax Accountant filled up this tax form and the tax form error. Then I recreated a new copy of the same tax form by filling up again all information or follow step by step from the beginning of a tax form as how this tax form was filled up and would look as a Tax Accountant circulated and applied all tax accounting principles in this individual tax return. To find solution to any error any support consultant must know tax law and tax regulations. When I found an error, I would look what this error number is and would look at our Sage system how to fix this error by applying tax law principles. Often I will use formula together with my Tax law knowledge to solve this problem fast.
7.If for any reasons I could not fix an error, I would contact the ATO by phone in relation to our clients I would go with the ATO representative through client tax form to try to find solution. Then together we would try to fix the client’s data file. After that when problem was fixed, I would call the client and I would tell the client how to fix this error, I could mention to a Tax Accountant about new updates for example, as law had changed that year and in that particular question please have a look where is a problem. I would tell the client that I could not give tax advise because of our company’s policy and I am not a registered tax agent could guide my client to solution as where was a problem in a tax form and how to fix it by saying, for example, “can you please have a look at this section of tax form and this tax law regulation and please fix it yourself as you feel is right by tax law’. There would be no advice from me but only help to allocate problem and guide to correct section on tax law regulation. I was able to show our clients how our Sage program was working and how to read and understand Sage errors. This way Tax Accountants usually understand strait away why there is a problem. We help them by guiding and advising them by IT formula way but with Tax law knowledge background.
8.I am not an IT person and never have been one. I was only working in the IT Company as a Support Consultant with Tax Accountant and tax law knowledge. In Sage there are few different divisions, different sections where Support Consultants, Programmers with different levels and knowledge in TAX, Superfund and so on. I was working as Support Consultant, dealing with clients Tax files only because I have Tax Accounting knowledge and I was able to work with Tax Accountant and help with their problems on their data file errors.
9.To help tax accountants to find way how to fix their problems by working with the ATO on behave of our clients, represent our clients before the ATO by asking to figure it out what is wrong with Tax Accountant form as if there were any error then the Tax Accountant would not be able to lodge this form by electronic transmission by using Sage Handi Soft program. Then get back to our client “Tax Accountant’’ and give them correct advice on error which is only could be found out with tax law knowledge and Tax Training. Working in Sage office with client data and creating tax form with entering all tax return yourself from beginning till the end was the best way to find any mistake. It was the same as when I worked in Accounting firm when I was working under supervision of a registered tax agent where I was able to give tax advise but I was filling up Tax Forms and fixing all errors by tax law regulations.
11.The work at Sage was very alike working under supervision of a registered tax accountant. I dealt and filled up I Form - individual Tax Form, C Form - Company Tax Form, T Form - Trust Tax Form, P Form - Partnership Tax Form, Superannuation Tax Form, did BAS returns, Amendment Tax forms, went through tag and lodge clients tax forms to ATO, ATO lodgement reports, ASIC Registrar and other Tax Accounting duties. Every day at Sage I constantly dealt with Tax form, starting new tax forms, filling them right, follow tax rules, finalise tax form.
………..
14.I believe that my work at Sage should be counted as very similar to work under supervision of a registered tax agent. At Sage I often helped registered tax agents to find quick solution on their problems, and this I did only because I am well trained and working at the same industry, with the same level of experience and with knowledge of tax law. Every day I entered from 10 to 30 Tax forms, checked them if they were filled up in compliance with tax law regulations. I dealt with the ATO and the ASIC every day. I dealt with Accountants and analysed their clients’ data every day.
15.I have excellent tax experience for 2 years working at Sage. I am confident in communication with clients, Tax Accountants and the ATO about Tax entries, Tax Law and Tax regulation. I gained very good experience at Sage with much more close contact and work with Tax data that I had in any Tax Accounting companies before. Sage gave me an opportunity not only to deal with IT issues and fixing tax errors in tax returns but helped me with analysing tax forms, with problem finding and fixing. This is often harder than just fill up a new tax form.
16.Work at Sage gave me an experience to re-wright client’s tax forms over and over until problem is fixed. There was always intense, it was always about finding a solution, fixing a problem and making our client satisfied with our service. It was challenge, it was creating greater knowledge than ever before. I believe that Sage work experience should be defiantly counted in my relevant work experience.2
Ms Oleshko’s oral evidence at the hearing was in substantially similar terms to the content of her witness statement, as set out above.
Ms Whitney Anderson, a recruitment consultant at Ambrosini Professional Placement, was responsible for placing Ms Oleshko in her role as a “Support Consultant” at Sage HandiSoft. Ms Anderson did not appear at the hearing and give evidence but did provide a Witness Statement, dated 4 December 2015, in support of Ms Oleshko’s application. Ms Anderson’s Witness Statement states:
3.I began recruiting for Sage HandiSoft (‘Sage’) in 2009.
4.From 2009 to 2012, I recruited a number of Support Consultants for Sage HandiSoft. I recruited 16 people overall for this position stop
5.In relation to the Support Consultant position SAGE Handisoft (sic.) main recruitment brief was as follows:
- accounting degree or formal Treasury qualification: and
- knowledge of accounting and taxation laws and principles: and
- good communication skills;
6.In relation to that position SAGE Handisoft instructed me that whilst the role was for a help desk position, the suitable candidate had to have knowledge and understanding of accounting and taxation to be able to give the correct directions to clients.
7.In relation to that position SAGE Handisoft instructed me an IT background was not suitable as the program was taught in house whereas knowledge of accounting was essential to the role.
Mr Garry Scher, Support Manager at Sage HandiSoft and former supervisor of Ms Oleshko during the period of her employment at Sage HandiSoft, appeared at the hearing and gave evidence.
For the following reasons, the Tribunal does not accept that Ms Oleshko’s work as a “Support Consultant” for Sage Handisoft in the period 26 May 2010 to 4 May 2012 can properly be regarded as “relevant experience” for the purpose of item 207 of Division 2 of Part 2 of Schedule 2 to the TASR:
· any work performed by Ms Oleshko at Sage HandiSoft in the period 26 May 2010 to 15 March 2011 was performed more than 5 years before the Tribunal’s decision on this application;
· the disclaimers on Sage HandiSoft’s website state that Sage HandiSoft staff do not provide “legal, accounting or taxation advice” and that Sage HandiSoft does not accept any responsibility for the results of any actions taken by its customers “in reliance on” its software, documentation or the services provided by its staff[2];
· the oral evidence given by Mr Scher (Ms Oleshko’s former supervisor at Sage HandiSoft) about the work performed by “Support Consultants” at Sage HandiSoft was much more consistent with the disclaimers on Sage HandiSoft’s website than Ms Oleshko’s evidence[3];
· Mr Scher indicated in his oral evidence that, whilst a tax background was clearly an advantage for a person employed at Sage HandiSoft as a “Support Consultant”, only 5-6% of Sage HandiSoft’s “Support Consultants” had formal qualifications in tax or accounting[4];
· Mr Scher did not accept the claims summarised in the Table contained in Ms Oleshko’s SFIC at [36] (refer to paragraph 30 above) and indicated that he would have been very concerned if he discovered that one of his staff had been preparing tax returns, preparing depreciation schedules, giving clients tax advice or dealing with the Australian Taxation Office (ATO) on behalf of Sage HandiSoft’s clients (or taxpayers)[5]
· Mr Scher made it clear that all of Sage HandiSoft’s clients were “tax agents” and that, in that context, he would not expect any of them to have placed any reliance at all on advice given about tax laws by a “Support Consultant” employed by Sage HandiSoft[6]; and
· Mr Scher did not accept that any of his “Support Consultants” would have contacted the ATO on behalf of a Sage HandiSoft client (or a taxpayer) as distinct from contacting the ATO about an “integration” error or other problem with Sage HandiSoft’s software[7];
· the Tribunal prefers the comparatively more objective and less emotive evidence of Mr Scher to the comparatively less objective and more emotive evidence of Ms Oleshko and, to the extent that Ms Oleshko’s evidence is contradicted by Mr Scher's evidence (and is unsupported by contemporaneous documents or other objective evidence), the Tribunal gives Mr Scher's evidence more weight than Ms Oleshko’s evidence.
2 See Exhibit 1 at p 9..
3 Mr Scher’s oral evidence, particularly at p 72, line 5 to p 74, line 40 of the Transcript.
4 Mr Scher’s oral evidence at p 84, lines 40-45 of the Transcript.
5 Mr Scher’s oral evidence, particularly at p 79, line 15 and p 81, line 25 of the Transcript.
[6] Mr Scher's oral evidence at p 73: lines 10-25 and p 81: lines 4-9 of the Transcript.
[7]Mr Scher's oral evidence, particularly at p 78, line 35 , p 79, line 6, p 90, line 30 , p 91, line 18 of the Transcript.
The Tribunal considers that the available evidence supports the following findings:
· “Support Consultants” working for Sage HandiSoft were not expected to provide tax advice that Sage HandiSoft clients (or taxpayers) could reasonably be expected to rely on and, in fact, were actively discouraged from providing such advice;
· “Support Consultants” working for Sage HandiSoft were not expected to contact the ATO on behalf of Sage HandiSoft clients (or taxpayers), but they may have called the ATO from time to time about synchronisation errors or other problems with Sage HandiSoft’s software;
· “Support Consultants” working for Sage HandiSoft were not expected to prepare tax returns, depreciation schedules or other tax documents that Sage HandiSoft clients (or taxpayers) could reasonably expect to rely on to satisfy their taxation obligations;
· if Ms Oleshko was found to be providing tax advice, preparing tax returns or other documents, or purporting to contact the ATO on behalf of Sage HandiSoft clients (or taxpayers), she may well have been disciplined by her employer since Sage HandiSoft wanted to ensure that its staff did not perform “tax agent services” or hold themselves out as being able to provide such services;
· Ms Oleshko’s work at Sage HandiSoft was not supervised by a registered “tax agent”, and she was not under the control of any such person for the purposes of item 207(c) of Division 2 of Part 2 of Schedule 2 to the Regulations;
· if Ms Oleshko had provided specific tax advice or prepared tax returns, depreciation schedules or other important tax documents, or dealt with the ATO on behalf of Sage HandiSoft clients (or taxpayers), then she is likely to have been providing “tax agent services” (without registration) for the purposes of s 90-5 of the TASA (refer to paragraph 14 above)[8];
· Ms Oleshko should not be permitted to rely on any “tax agent services” (as defined in s 90-5 of the TASA: refer to paragraph 14 above) she may have performed while working as a “Support Consultant” at Sage HandiSoft because it was unlawful for her to provide such services without being registered as a “tax agent”[9]; and
· any representations made by Ms Oleshko that she was acting as a tax agent for a Sage HandiSoft client (or a taxpayer) during any calls she may have made to the ATO while working as a “Support Consultant” for Sage HandiSoft do not constitute “relevant experience” within the meaning of item 207 of Schedule 2 to the TASR’[10]. The TASA specifically prohibits unregistered persons from providing “tax agent services” (s 50-5 of the TASA), advertising “tax agent services” (s 50-10 of the TASA) or making representations about being a “tax agent” (s 50-15 of the TASA). Consequently, the Tribunal considers that Ms Oleshko should not be permitted to rely on any such contact as “relevant experience” for the purpose of item 203(c) of Schedule 2 to the TASR.
[8] Exhibit 5 at item (i)
[9] See s 50-5 of the TASA.
[10] See s 50-15 of the TASA.
Further, the Tribunal finds that none of the Sage HandiSoft Work should be treated as work “of another kind approved by the Board” for the purpose of item 207(f) of Division 2 of Part 2 of Schedule 2 to the TASR because that work:
· was performed more than 5 years before the date of the Tribunal’s decision for the purpose of item 203(c) of Schedule 2 to the TASR; and/or
· involved the provision of “tax agent services”, as defined in s 90-5 of the TASA (refer to paragraph 14 above) by a person who was not a registered tax agent; and/or
· was, for the most part, insufficiently related to the provision of “tax agent services” or the application of a related area of taxation law to amount to “substantial involvement” in 1 or more of the types of “tax agent services” described in s 90-5 of the TASA (refer to paragraph 14 above) and as such was not the equivalent of “full-time, relevant experience” for the purpose of item 203(c) of Schedule 2 to the TASR.
For the above reasons, the Tribunal considers that Ms Oleshko’s work at Sage HandiSoft is to be disregarded when assessing whether she has had sufficient “relevant experience” (within the meaning of item 207 of Schedule 2 to the TASR) in the “preceding” 5 years for the purpose of item 203(c) of Schedule 2 of the TASA and, it follows, s 20-5(1) of the TASA.
Work for “Hagen Taxation Services”
For the following reasons, the Tribunal does not accept that the work Ms Oleshko claims to have performed while operating her own business under the name “‘Hagen Taxation Services” between 1 July 2013 and 1 December 2013 (Hagen Work) (refer to paragraph 15(v) above) can properly be regarded as “relevant experience” within the meaning of item 207 of Schedule 2 to the TASR:
· both Mr Gerrans and Mr Felter have failed to provide a “Statement of relevant experience for tax agent” or equivalent documentary evidence corroborating Ms Oleshko’s evidence that she performed tax agent services under their supervision and control in the relevant period[11];
· Ms Oleshko gave conflicting evidence about whether she was, or wasn’t, employed by Mr Felter during the time she was performing the Hagen Work[12] and about the promotional material Ms Oleshko says she used to promote “Hagen Taxation Services” makes no reference to any supervision or other involvement by Mr Gerrans, Mr Felter or their relevant businesses (i.e. DJG Consulting and TaxN)[13];
· despite Ms Oleshko’s denials during her oral evidence[14], the promotional material for “Hagen Taxation Services” either represented that Ms Oleshko was a “Registered, experienced tax agent”[15] or at least had the potential to create confusion in the mind of a potential client or independent third party about whether that might be the case;
· the Board’s records refer to “a number of complaints” being made about Ms Oleshko in 2013 about “the services provided by [Ms Oleshko] during the 2013 taxation season whilst unregistered”[16];
· the Board sent Ms Oleshko in March 2014 indicating that it had come to the Board’s attention that Ms Oleshko may have been “engaging in conduct that is prohibited” by the TASA and asking her to provide a written acknowledgment that she would not “charge or receive a fee or other reward for providing tax agent services while unregistered”[17]; and
· Ms Oleshko acknowledged, in her oral evidence, that there had been at least one complaint about the services she provided while working under the business name “Hagen Taxation Services” in 2013[18].
[11] Exhibit 1 at T1/6 - [5], T3/15 - [34]-[3.5], and ST2/5.
[12] Transcript at p 49: line 15, p 50: line 24, p 50: line 5 and p 51: line 11.
[13] Exhibit 1 at T3/50-51.
[14] Transcript at p 51: line 40 and p 52: line 31.
[15] Exhibit 1 at T3/51.
[16] See, for example, Exhibit 1 at T3/15, [4].
[17] Exhibit 7 as well as Exhibit 1 at T3/15, [5].
[18] Transcript at p 53: lines 7-20.
In conclusion, the Tribunal finds that there is a significant degree of uncertainty about the extent to which the Hagen Work was performed under the supervision and control of Mr Gerrans and/or Mr Felter. In that context, and in the absence of any evidence to corroborate Ms Oleshko’s claims about the Hagen Work, the Tribunal is not satisfied that the Hagen Work was “relevant experience” within the meaning of item 207 of Schedule 2 to the TASR and for the purpose of item 203(c) of Schedule 2 to the TASR and, it follows, s 20-5(1) of the TASA.
Recent Experience
Whilst it is possible that the 4 months of Recent Experience the Applicant claims to have gained since “late 2015” is “relevant experience” for the purposes of item 207 of Schedule 2 to the TASR (refer to paragraph 23 above), given that Mr Gerrans and Mr Felter were unwilling to provide a “Statement of relevant experience for tax agent” or equivalent documentary evidence for the Hagen Work and that Mr Scher was unwilling to provide a “Statement of relevant experience for tax agent” or equivalent documentary evidence for the Sage HandiSoft Work, the Tribunal considers that Ms Oleshko’s claims about the Recent Experience should be viewed with caution.
Ms Oleshko has not provided a “Statement of relevant experience for tax agent”, or any equivalent evidence, for the Recent Experience and she did not seek to call her current employer to give evidence at the hearing. In such circumstances, the Tribunal does not accept that the Recent Experience is “relevant experience” for the purposes of item 207 of Division 2 of Part 2 of Schedule 2 to the TASR
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.
I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ...(Sgd) Jane Spillane........................
Administrative Assistant
Dated 8 April 2016
Date of hearing
Date final submissions received
2 March 2016
31 March 2016
Applicant In person Counsel for the
RespondentSolicitor for the Respondent
Mr A Schatz
Mr J Matheson
Senior Legal Officer
Tax Practitioners Board
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