Legal Research
Cases
Re Toohey and Tax Agents' Board

Re Toohey and Tax Agents' Board

Link copied

Case Copied 2 April 2008 76 min read

Contents

On this page

CATCHWORDS – TAX AGENTS – application for re-registration – “fit and proper person” – whether applicant a fit and proper person to prepare tax returns and transact business on behalf of taxpayer – public protection – obligations of a tax agent – failure to lodge tax returns – whether special circumstances exist – decision affirmed.

PRACTICE & PROCEDURE – whether relevant date to satisfy re-registration criteria time of application, Board’s decision or time of the Tribunal’s review – difference between an application for registration and re-registration – merits to be reviewed at the time of the Board’s decision.

WORDS AND PHRASES – “because of”, “fit and proper”, “may”, “should be disregarded”

Crimes Act 1914 s 6
Criminal Code ss 11.1, 11.4 and 11.5
Income Tax Assessment Act 1936 ss 251C, 251J(1), 251JA, 251JB, 251BC, 251JB, 251JC, 251JG, 251K, 251KG(a)-(b), 251L(1), 251M(1), 251N(1) and 251N(2A).
Income Tax Regulations 1936 rr 156(2) and 159
Taxation Administration Act 1953 ss 8N, 8T and 8U

Allonah Pty Ltd v The Ship “Amanda N” (1989) 21 FCR 60; 90 ALR 391
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11
Beadle v Director-General of Social Security (1985) 60 ALR 225
Dranichnikov v Centrelink (2003) 75 ALD 134; 53 ATR 270

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 15 ALD 671; 87 ALR 506
Green v R (2000) 133 NTR 1; 9 NTLR 138
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hella (Australia) Pty Ltd v Secretary of the Department of Industry, Tourism and Resources (2006) 94 ALD 797
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127
Jess v Scott (1986) 12 FCR 187
Leach v R (2007) 232 ALR 325
New South Wales Bar Association v Murphy [2002] NSWCA 138
R v D’Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454
Re Budai and Tax Agents Board of New South Wales (2002) 51 ATR 1058
Re Carbery & Associates Pty Ltd and Tax Agents’ Board (2001) 46 ATR 1106
Re Egulian and Tax Agents’ Board of New South Wales (1991) 91 ATC 2060
Re Fitzgibbon and Tax Agent’s Board of Queensland (1993) 29 ALD 926
Re Modini and Tax Agents’ Board of Queensland (2007) 98 ALD 466; [2007] AATA 1921
Re Singh and Minister for Immigration and Citizenship (2007) 99 ALR 341; [2007] AATA 2023
Re Webb and Tax Agents’ Board of Queensland (1992) 28 ALD 464; 92 ATC 2,101
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Samad v District Court (NSW) (2002) 209 CLR 140; 189 ALR 1
Sclater v Horton [1954] 2 QB 1
Secretary, Department of Family and Community Services v Chamberlain (2002) 68 ALD 357

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.

Keep reading for free

Create a free CaseChat account to read Re Toohey and Tax Agents' Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] AATA 262
Decision Date: 2 April 2008

CaseChat Overview and Summary

This case involves an application by Peter Toohey for re-registration as a tax agent by the Tax Agents’ Board of Victoria. The Board refused his application on the basis that it was not satisfied that he was a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters. Toohey had previously been registered as a tax agent from 1976 to 2004, apart from a five-month suspension in 2002. The Tribunal affirmed the Board's decision, and Toohey appealed to the Federal Court. The Federal Court set aside the Tribunal's decision and remitted it to a differently constituted Tribunal. The Tribunal has now affirmed the Board's decision. The legal issues considered in the case include whether the merits of the decision are reviewed at the time of the application, the Board's decision, or the date of the Tribunal's review, the meaning of "special circumstances," and whether Toohey's circumstances were special circumstances that should be disregarded in deciding whether he was a fit and proper person to be a tax agent. The Tribunal concluded that the merits of the decision are reviewed at the date of the Tribunal's decision, that Toohey's circumstances were not special circumstances, and that Toohey was not a fit and proper person to be a tax agent.

Orders