Ristevski and Tax Practitioners Board

[2019] AATA 5196

Ristevski and Tax Practitioners Board [2019] AATA 5196 (3 December 2019)

Division:Taxation and Commercial Division

File Number(s):      2019/6960

Re:Peter Ristevski

APPLICANT

Tax Practitioners BoardAnd  

RESPONDENT

Decision

Tribunal:Mr P W Taylor SC, Senior Member

Date:3 December 2019

Place:Sydney

The following order, made pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), is desirable and appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

1Subject to any further order, and subject to paragraph 3 below, the operation of the Respondent’s 19 September 2019 decision terminating the Applicant’s registration as a tax agent is stayed until the decision of the Tribunal on the application for review comes into operation.

2The stay order is subject to the following conditions:-

(a)The Applicant in his personal capacity, and as the sole director of Chan & Naylor Liverpool Operating Pty Ltd, and as the controller of any other entity providing tax agent services, is:-

(i)     not to accept any new taxation service clients whilst the stay is in effect, and

(ii)    to lodge all required individual, company and trust income tax returns and business activity statements by their due date, or any extended date agreed to in writing by the ATO.

(b)On or before 13 December 2019, the Applicant must inform each of his practice clients, each of the Chan & Naylor Liverpool Operating Pty Ltd employees, and the Board of Chan and Naylor Australia Pty Ltd - by email or letter - of the matters set out in Schedule 2 of these reasons for decision.

(c)On or before 20 December 2019 the Applicant is to provide to the Tax Practitioners Board evidence of his notification to the practice clients, the employees and the Board - either by providing copies of the emails or letters to the Board or by providing a statutory declaration accompanied by a schedule with the name of each person or entity, the date they were notified and the manner in which they were notified.

(d)If any client requests further information about either the 6 September 2016 decision or the 19 September 2019 decision, the Applicant is not (without the prior written consent of an officer of the Tax Practitioners Board) to provide any explanatory information, other than the contents of (one or more of) (i) the 6 September 2016 decision and reasons, (ii) the contents of the 30 September 2019 Tax Practitioners Board letter, (iii) the letters dated 5 April, 14 May and 6 September 2019 that Piper Alderman submitted to the Tax Practitioners Board and, (iv) the Tribunal reasons for decision relating to the making of these orders.

(e)On the Friday of each fortnight, commencing on 10 January 2020 (but excluding public holidays) the Applicant is to provide to the Board a report with the names of any clients who have requested further information and a statement identifying the content of any information provided in response to their request.

3Subject to any further order, or the prior written consent of an officer of the Tax Practitioners Board, the stay in paragraph 1 above will terminate in the event of the Applicant’s failure to comply, timeously and substantially, with any of the above conditions and, in the event of any such failure, will terminate without any further order, application or direction.

4Each party has liberty to apply.

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

Mr P W Taylor SC, Senior Member

Catchwords

PRACTICE AND PROCEDURE – application for stay of decision – decision to terminate tax agent registration – prior undisclosed disqualification under the Superannuation Industry (Supervision) Act 1993 (Cth) – non-compliance with taxation laws (personal and corporate lodgement defaults, corporate tax debts) – Board findings of misleading statements about fitness and taxation law compliance in renewal applications and Annual Declarations – meaning of “personal affairs” in Tax Agent Services Act 2009 (Cth) – asserted misleading information provided in response to Board investigation (disavowal of status as a director of companies with taxation law defaults) – disputed competency of tax agent services (disallowed expense claims in client tax returns) – disputed propriety of conduct in response to client complaints to the Board

Considerations relevant to determining application for stay – nature of the statutory scheme – arguable imprecision of some material Board findings – questionable prospects of success of substantive review application in relation to some Board findings – public interest – applicant’s personal circumstances – interests of employees, clients and licensor of business name – stay granted, subject to conditions requiring disclosure

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 41

Income Tax Assessment Act 1936 (Cth) ss 161, 252, 252A

Superannuation Industry (Supervision) Act 1993 (Cth) ss 126A, 128F

Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 9A.06

Tax Agent Services Act 2009 (Cth) ss 2-5, 2-10, 20-5, 20-15, 20-25, 20-45, 20-50, 30-5, 30-10, 30-15, 30-20, 30-35, 40-5, 40-25, 50-5, 60-95, 70-10, 90-5

Tax Agent Services Regulations 2009 (Cth) reg 8

Taxation Administration Act 1953 (Cth) Schedule 1 s 444-10

Cases

Allied Asia Holdings (Aust) Pty Ltd v Australian Securities & Investments Commission [2002] FCA 566

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Carter v Tax Practitioners Board (Taxation) [2017] AATA 528

Delis v Tax Practitioners’ Board [2015] AATA 820

Delis v Tax Practitioners’ Board [2016] FCA 570

Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719

Re Jeffers and Australian Securities and Investments Commission [2015] AATA 537

Re Mclean and Australian Securities and Investments Commission [2016] AATA 22

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

Secretary, Department of Social Services and McNamara [2016] AATA 189

Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796; (2008) 106 ALD 506

Secondary Materials

Accounting Professional and Ethical Standards Board Limited (2010) APES 110 Code of Ethics for Professional Accountants, paras 290.181, 290.182, 290.183

Accounting Professional and Ethical Standards Board Limited (2018) APES 110 Code of Ethics for Professional Accountants (including Independence Standards), Part 4A

Tax Practitioners Board (2010) Explanatory Paper TPB (EP) 01/2010: Code of Professional Conduct, para 38

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

3 December 2019

1. Since early October 2010 Mr Ristevski has been registered as a tax agent under s 20-25 of the Tax Agent Services Act 2009 (Cth) (“TASA”). On 20 March 2019, in accordance with TASA s 60-95(2), the Tax Practitioners Board (“Board”) notified Mr Ristevski it had decided to investigate his conduct, in connection with possible failures to comply with parts of the Code of Professional Conduct (“Code”) contained in TASA s 30-10 and the eligibility requirement in TASA s 20-5(1)(a). On the same day the Board sent Mr Ristevski a further letter in which it set out the substance of its concerns.[1] 

   [1]The Board’s stated concerns involved (i) Mr Ristevski’s September 2016 disqualification (from responsible officer status with a superannuation entity) under s 126A of the Superannuation Industry (Supervision) Act 1993 (Cth) (“SIS Act”):- see paragraph 22 below, (ii) the non-disclosure, in relation to his personal registration, of matters referred to later in these reasons:- see paragraph 43 below, (iii) some apparent irregularities in the establishment of several self-managed superannuation funds:- see paragraph 28 below, (iv) lodgement delays, and outstanding lodgement obligations, for various entities:- see paragraph 25 below, (v) a $341,000 tax debt of a de-registered company of which he had been a director:- see paragraph 26 below and, (vi) a complaint about Mr Ristevski’s September 2018 oral response to a Board officer’s telephone enquiry about a client complaint:- see paragraph 27 below.

2. In April, May and early September 2019, solicitors acting on Mr Ristevski’s behalf provided detailed written responses to the matters the Board had raised.

3. Notwithstanding those responses, at its 19 September 2019 meeting the Board found Mr Ristevski had breached several Code provisions, and decided to terminate his registration as a tax agent. The termination was to take effect from 1 November 2019. The Board made its decision because of those Code breaches and under TASA s 40-5(1)(b), on the basis it was not satisfied Mr Ristevski continued to meet the registration eligibility requirement (in TASA s 20-5(1)(a)) of being a fit and proper person. Having made that decision, the Board also made a determination (under TASA s 40-25(1)) that Mr Ristevski could not apply for re-registration until after 1 November 2024.

4. After being notified of the decision, by the Board’s 30 September 2019 letter, Mr Ristevski lodged a review application with the Administrative Appeals Tribunal (“Tribunal”) on 28 October 2019.[2] At the same time, he sought an order, under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), staying the operation of the Board’s decision.[3]

   [2]Various kinds of Board decisions are reviewable on application to this Tribunal. Those decisions include (i) rejection of registration applications, (ii) refusal to abridge the time for a renewal application, (iii) termination of registration and, (iv) the determination of a period of ineligibility to apply for registration:- TASA s 70-10(a), (d), (e) & (h).

   [3]In the absence of a timely renewal application, Mr Ristevski’s then current registration period would have ended on 1 November 2019 in any event. On 26 September 2019 he lodged his, presently undetermined, renewal application. If the operation of the Board’s termination decision were to be stayed, his registration would continue until the Board determined his renewal application.

   The Tribunal’s stay power

5. The Tribunal has the power to stay the operation or implementation of a reviewable decision, to the extent that it considers appropriate, “for the purpose of securing the effectiveness of the hearing and determination of the application for review”:- AAT Act s 41(2). The power permits the Tribunal to impose conditions upon, and to determine the period of, any stay:- AAT Act s 41(6). Exercise of the discretionary power is preconditioned on the Tribunal taking into account “the interests of any persons who may be affected by the review”:- AAT Act s 41(2).

6. The determinative criterion for the exercise of the Tribunal’s stay power - satisfaction about the desirability and appropriateness of the proposed orders “for the purpose of securing the effectiveness of the hearing and determination of the application for review” - is a permissibly general expression. It allows the making of orders restricting a decision maker’s ordinary practices, or compliance with other statutory obligations, relating to publication of the reviewable decision:- see Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 at [71] & [81] per Downes and Jagot JJ. That breadth of the power indicates, notwithstanding a possible limitation connoted by the expression “effectiveness of the hearing”, that the considerations informing the exercise of the stay power are not limited to the mere procedure for the conduct of the review hearing.

7. The basic nature of the Tribunal’s review function requires regard to the statutory scheme relevant to the reviewable decision:- see Australian Securities and Investments Commission v Administrative Appeals Tribunal[2009] FCAFC 185; (2009) 181 FCR 130 at [51]-[54] and [56]-[57] per Downes and Jagot JJ. The statutory scheme contributes to a proper understanding of the practical consequences of the reviewable decision. It also contributes to an appreciation of the materiality of the public interest to both that decision, and to the exercise of the stay discretion.

8. The exercise of the stay power is subject to requirements to take into account the interests of “any persons who may be affected by the review”, and the decision maker’s position in relation to the stay application:- see AAT Act ss 41(2) & 41(4). Those provisions, and previous decisions of both the Federal Court of Australia and this Tribunal (see Re Scott and Australian Securities and Investments Commission[2009] AATA 798; (2009) 51 AAR 114; Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719 at [14]-[15]; Secretary, Department of Social Services and McNamara [2016] AATA 189) support the view that a wide range of considerations permissibly inform the exercise of the stay power. That range of permissibly (and in relation to some matters, necessarily) relevant considerations include:-

   (a)the nature of the reviewable decision (including the findings on which it is based),

   (b)the functions and responsibilities of the statutory decision maker, and the public interest relating to them,

   (c)the practical consequences of the decision under review (to the parties and to any interested persons), unless its operation is the subject of a stay, after taking into account:-

   (i)the timing of the reviewable decision, the application, and any likely review hearing,

   (ii)the ability of the applicant to pursue the review proceedings effectively,

   (iii)the likely practical utility of any favourable review outcome, and

   (iv)conditions that might be imposed as a term of any stay,

   (d)an applicant’s prospects of obtaining a materially more favourable outcome as a result of the review proceeding, and

   (e)the reasons proffered to support, or oppose, the stay application, and the potential practical consequences of any stay.

9. The nature of the statutory scheme, including the procedures involved in the reviewable decision, the specificity of the findings involved in the decision reasons, and the interests (particularly the public interest) the exercise of the statutory power are intended to serve, may provide a proper basis for refusing a stay application. They are particularly likely to do so where the available material does not conduce to an appropriate degree of satisfaction that the review process has a real prospect of a more favourable outcome:- Allied Asia Holdings (Aust) Pty Ltd v Australian Securities & Investments Commission[2002] FCA 566 at [10]. Even where the Tribunal is satisfied of the prospect of such an outcome, the other kinds of permissibly relevant considerations may provide a proper basis for refusing to stay the operation of the decision under review.

   Limitations in assessing the prospects of a more favourable review outcome

10. The permissible refusal of a stay application is unlikely where a review applicant provides a basis for substantial confidence that a favourable review outcome is very likely. But any assessment of an applicant’s review prospects must proceed on the basis of a real appreciation of the state and quality of the available primary evidence, a potentially incomplete awareness of all the material issues that may arise for consideration, and the prospect of additional relevant material. Those kinds of considerations will typically require caution in attempting, at the time a stay application typically falls for determination, to make a fair and informed assessment of an applicant’s apparent prospects of success, and in regarding that assessment as significantly determinative of the outcome of the stay application:- see Re Mclean and Australian Securities and Investments Commission [2016] AATA 22 at [8]; Re Jeffersand Australian Securities and Investments Commission [2015] AATA 537 at [38]. That required caution does not, however, detract from the appropriateness of considering the extent to which the available material is either (i) apparently unlikely to lead to a favourable significant variation of the reviewable decision, or (ii) sufficient to provide grounds for confidence that such a variation may be appropriate.

11. Often the requisite cautious consideration may not lead to confidence about the real prospects of a favourable outcome of the review proceedings. In those cases the uncertain, but apparently arguable, prospect of a successful review outcome will result in focussing attention on the nature of the matter, the interests affected by the decision, and the practical consequences of granting or refusing any stay.

    TASA provisions relevant to registration and AGEnts Conduct

12. The basic TASA purpose is to ensure that tax agent services are provided “in accordance with appropriate standards of professional and ethical conduct”:- see TASA s 2-5. (The expression “tax agent services” is broadly defined, and generally includes providing advice and representation services relating to Commonwealth taxation matters:- see TASA s 90-5.) The TASA scheme involves the establishment of the Board, endowing the Board with registration, conduct investigation and disciplinary functions, and the enactment of a mandatory Code for tax agents. The Board administered registration regime is a fundamental means of effectuating TASA’s stated purpose. A person must be a registered tax agent to be able to charge for providing “tax agent services” - unless they do so as a practising lawyer:- see TASA ss 2-10 & 50-5. 

13. A threshold eligibility requirement is an applicant’s probity and good repute. An individual registration applicant must satisfy the Board that they are a “fit and proper person”:- see TASA s 20-5(1)(a). A corporate applicant for tax agent registration must satisfy the Board that each of its directors is a “fit and proper person”:- TASA s 20-5(3)(a).

14. Subject to any more specific eligibility requirements, an individual applicant (and any director of a corporate applicant) will likely satisfy the Board they are “fit and proper” if they can adequately demonstrate they are of “good fame, integrity and character”:- TASA s 20-15(a). The considerations that may inform such an assessment are not prescriptively defined:- see TASA s 20-15(b); Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796; (2008) 106 ALD 506 at [3]. They must include, but the assessment is neither limited to nor explicitly determined by, circumstances where, in the preceding five years, the person has:-

    (a)served, or has been sentenced to, a term of imprisonment:- TASA ss 20-15(b)(i) & 20-45(f); 20-15(b)(iii),

    (b)had the status of an undischarged bankrupt:- TASA ss 20-15(b)(ii) & 20-45(e),

    (c)been convicted of any offences involving fraud or dishonesty:- TASA ss 20-15(b)(i) & 20-45(b), and

    (d)been convicted of, or otherwise sanctioned for, a “serious taxation offence” or certain other kinds of tax related misconduct:- TASA ss 20-15(b)(i) & 20-45(a), (c) & (d).

15. The registration eligibility criteria for an individual tax agent include appropriate qualifications, experience and professional indemnity insurance:- TASA s 20-5(1)(b) & (c); Tax Agent Services Regulations 2009 (Cth) reg 8. The similar eligibility criteria for an incorporated tax agent entity include (i) not having incurred a conviction for fraud, dishonesty or a “serious taxation offence” within the preceding five years, (ii) having sufficient registered individual tax agents to provide (and supervise the provision of) competent tax agent services and, (iii) having requisite professional indemnity insurance:- TASA s 20-5(3).

16. An applicant who satisfies the relevant eligibility requirements, must be registered:- TASA s 20-25. Their registration may be subject to conditions relating to subject matters in respect of the services the tax agent can provide:- TASA s 20-25(5) & (6). Registration must be for a minimum period of three years:- TASA s 20-25(4). Registration is renewable in response to a timely (or otherwise permitted) application:- TASA s 20-50(1). Where an agent has submitted a timely renewal application, their registration is taken to continue until the Board determines the application:- TASA s 20-50(2).

1. As a registered person, a tax agent is subject to various obligations. They include:-

   (a)compliance with any registration conditions imposed by the Board:- TASA s 20-25(5),

   (b)compliance with the statutory Code:- TASA ss 30-5 & 30-10 (The Code sets out basic requirements of honesty, competence, lawfulness, and client best interest.),

   (c)notifying the Board “whenever” they cease to meet any registration requirements:- TASA s 30-35(1)(a), and

   (d)notifying the Board if they have (amongst other things) been convicted of a “serious taxation offence”, convicted of any other offence involving fraud or dishonesty, or sentenced to imprisonment:- TASA ss 30-35(1)(b) & 20-45(a), (b) & (f).

2. The Board can terminate a tax agent’s registration in various circumstances. One obvious circumstance is where the agent ceases to meet a registration requirement:- TASA s 40-5(1)(b). Another is where an agent has breached a condition of their registration:- TASA s 40-5(1)(c). Further termination grounds include those where a tax agent has either (i) been convicted of a “serious taxation offence” (or a dishonesty offence), (ii) become bankrupt or, (iii) been sentenced to imprisonment:- TASA ss 40-5(1)(a) & 20-45(a), (b), (e) & (f). Where the Board has conducted an investigation into an agent’s conduct, and concluded the agent has failed to comply with the Code, there are further statutory powers to (i) impose a requirement for supervision of the agent, (ii) require the agent to undergo training or education, and (iii) suspend or terminate the agent’s registration:- TASA ss 30-15(2) & 30-20(1). 

3. When the Board terminates a tax agent’s registration (for reasons other than the agent’s insolvency) it may also preclude the agent from applying for re-registration, for a period of up to 5 years:- TASA s 40-25(1) & (2).

4. The TASA scheme clearly shows that probity (both as to character and repute), competence, and lawful conduct (particularly in relation to Commonwealth taxation laws) are intended to be the pre-conditions to any entitlement to provide remunerated “tax agent services”. Conversely, a person who satisfies those requirements is ordinarily entitled to registration. There are therefore two aspects of “public interest” that are intended to be served by the TASA scheme. One aspect is that of establishing a supervised regime for ensuring compliance with appropriate standards. The other aspect is that of facilitating the general availability of the services of persons who satisfy the TASA registration and conduct requirements.

   Communications prior to the Board’s Termination decision

5. As the brief earlier outline of events suggests, the September 2019 termination decision was preceded by various communications between the Board and Mr Ristevski about the subject matter and progress of its investigation. Consistent with the scope of the considerations permissibly relevant to the exercise of the stay power (which include the nature of the decision making process and the content of the available information), it is useful to outline the material aspects of those communications.

6. The matters raised in the Board’s 20 March 2019 letters were briefly summarised earlier in these reasons:- see paragraph 1, footnote 1 above. They drew on the fact that on 6 September 2016 the Commissioner of Taxation, acting under s 126A of the Superannuation Industry (Supervision) Act 1993 (Cth) (“SIS Act”), had disqualified Mr Ristevski from being a trustee, or the responsible officer of a corporate trustee, of a superannuation entity. The statement of reasons for that decision indicated that a substantial basis for the disqualification was a history of income tax return lodgement defaults relating to tax years from June 2010 to June 2015. The taxpayers concerned were Mr Ristevski, and nine entities with which he was said to be associated. They included Chan & Naylor Liverpool Operating Pty Ltd (“C&NOL”), the corporate entity that, in its capacity as a trustee, conducted his accounting practice business:- see paragraph 73 below. The lodgement defaults and delays relating to C&NOL and Mr Ristevski personally, involved the June 2013, June 2014 and June 2015 tax years. 

7. Mr Ristevski’s solicitor’s 5 April 2019 letter had responded to each of the matters raised in the Board’s 20 March 2019 letters. The substance of those responses is summarised in the following four paragraphs.

8. The September 2016 SIS Act disqualification decision:- Mr Ristevski had not known about the decision until he received the Board’s 20 March 2019 letters.

9. The lodgement defaults and delays:- In relation to himself and the nine other allegedly associated entities identified in the Board’s 20 March 2019 letter as having lodgement defaults:- 

   (a)six of the entities were either mere trustees[4], a superannuation trust fund that was said never to have operated[5], or the trading name of one of the other corporate entities[6], and in each case there was no relevant tax return lodgement obligation.

   (b)three of the other named entities were either companies of which Mr Ristevski was not a director, or a trust over which he had no control[7] and, leaving aside the position of the company de-registered in 2012, none had current lodgement defaults.

   (c)Mr Ristevski’s relevant lodgement defaults for his personal income tax returns related to the 2013 and 2014 tax years. They had been lodged in March and April 2015. The 10 month delay involved in lodgement of the 2013 tax return was the result of a combination of business and personal / family pressures, which Mr Ristevski characterised as having occurred in a “calamitous” year. The six month delay involved in the 2014 tax return lodgement was partly because of a mistaken understanding as to when it was in fact due, and partly also because of the same pressures that had contributed to the lodgement delay for the previous year.

   (d)in every case where lodgements were required, Mr Ristevski believed that they had been lodged and were up to date.[8]

   [4]Chan & Naylor Liverpool Operating Pty Ltd (“C&NOL”), Chan & Naylor Goodwill Pty Ltd, Australian Syndicate Group Pty Ltd and Yellow Brick Road Accounting Pty Ltd.

   [5]MP Global Investment Services Superannuation Fund. However, the ATO’s 6 September 2016 reasons recorded that the fund had been established on 13 July 2007, and Yellow Brick Road Accounting Pty Ltd had been appointed as the new trustee (apparently replacing two individual trustees, one of whom was Mr Ristevski) on 22 February 2016.

   [6]           Mack Partnership, the trading name of Mack Partners Pty Ltd.

   [7]They were Mack Partners Pty Ltd, Raptor Motors Pty Ltd (de-registered 24 October 2012) and the Ristevski Family Trust.

   [8]The lodgement details set out in the Board’s 26 July 2019 submission document to a Board Conduct Committee indicated that (apparently despite the contention in the 5 April 2019 letter that many of the entities were not required to submit returns) a large number of the returns asserted by the ATO to have been outstanding (and returns for tax years 2016 & 2017) had been lodged on 26 & 27 March 2019.

10. The $341,000 tax debt:- This was a debt of Raptor Motors Pty Ltd, a company that had been de-registered in October 2012. (The debt appears to have primarily related to an income tax liability that had accrued by the end of the 2008 tax year.) Mr Ristevski, provided a signed notice of his resignation as a director in November 2004. (At the time of his asserted resignation Mr Ristevski was one of four directors, and a minority shareholder.)

11. The September 2018 oral response to the Board about a client complaint:- Mr Ristevski had previously received a number of confronting calls from the complaining client. On the particular occasion raised by the Board, Mr Ristevski had believed that the contentious phone call was another such call from one of the client’s associates. He had not appreciated that it was actually a call from one of the Board officers. Now that he understood that was the case, he apologised for any offence he may have caused.[9]

    [9]Several months earlier Mr Ristevski’s solicitors had previously provided a detailed response to the Board about the substance of the client’s complaint. That response included a submission that the work Mr Ristevski had done for the client did not involve “tax agent services” and was outside the scope of the Board’s disciplinary jurisdiction.

12. In a 10 April 2019 email to Mr Ristevski’s solicitors the Board sought further information.  With some, perhaps undesirable, generality, the Board’s 10 April 2019 email also sought Mr Ristevski’s response to the matters addressed in the statement of reasons for the Commissioner’s 6 September 2016 disqualification decision. Those matters included the lodgement defaults and delays to which I referred earlier:- see paragraph 25 above. They also included concerns about Mr Ristevski’s apparent involvement with 20 self managed superannuation funds (“SMSF”). The Commissioner’s reasons considered that nine of those funds had been improperly established (for the principal purpose of facilitating the members pre-retirement access to superannuation funds). In the case of 11 other funds, Mr Ristevski had acted as both their tax agent and their auditor. That dual role was said to be a breach of the independence standards required of an approved SMSF auditor.

13. The two more specific queries the Board raised in the 10 April 2019 email indicated some scepticism of Mr Ristevski’s claimed ignorance of the disqualification decision and of the accuracy of his disavowal of status as a director of Mack Partners Pty Ltd. The Board’s query about Mr Ristevski’s belated awareness of the disqualification decision was based on the facts that (i) in August 2016 he had received a “show cause” letter from the Commissioner of Taxation and, (ii) on 1 September 2016 he had sent a brief response letter to the Commissioner. 

14. The Board’s query about Mr Ristevski’s disavowal of status as a director of Mack Partners Pty Ltd requires a little explanatory background. The September 2016 disqualification decision reasons had identified “Mack Partners” as a corporate tax agent, of which Mr Ristevski was one of two directors, with a history of late lodgement of its income tax returns for each of the tax years from June 2010 to June 2015. Corporate search results the Board had obtained indicated that (i) as at 21 November 2018, Mr Ristevski had apparently been the sole director of the company since 11 August 2006, (ii) on 29 March 2019 (nine days after the Board’s investigation notice) Mr Ristevski, as the sole director of the company, had recorded a change of his name as director to “Ronald Jager”, with effect from 11 August 2006, that being the date of Mr Ristevski’s original appointment as a director of the company.

15. In their 5 April 2019 letter Mr Ristevski’s solicitors had foreshadowed a more detailed response to the Board’s 20 March 2019 letters. That further response, which also took into account the Board’s 10 April 2019 email requests, was contained in their 14 May 2019 letter. The letter addressed the superannuation fund audit concerns underlying the Commissioner of Taxation’s 6 September 2016 decision. One aspect of those concerns was the ATO’s refusal to approve nine SMSF, because of doubts that they had been established for a genuine superannuation purpose. The 14 May 2019 letter did not address those concerns (perhaps because of the apparent absence of any specific allegation about Mr Ristevski’s conduct). Another aspect of the disqualification reasons related to some 16 superannuation funds where Mr Ristevski had been listed as both their tax agent and approved auditor. In relation to that matter, the letter stated that Mr Ristevski had not in fact audited any of them. Moreover, most of those funds were said never to have operated, in any event.

16. In relation to the first of the two more specific queries in the Board’s 10 April 2019 email, the 14 May 2019 letter repeated (without any further detail) the claim that Mr Ristevski had not been aware of the 6 September 2016 disqualification decision. In relation to the second query concerning Mack Partners Pty Ltd, the letter adhered to the proposition that Mr Ristevski had not been a director of Mack Partners Pty Ltd at the time of any of the lodgement defaults / delays listed in the disqualification decision reasons. It did so despite, and without any explicit reference to or explanation of, the contents of the 29 March 2019 “change of name” document to which the Board’s 10 April 2019 email had drawn attention:- see paragraph 30 above. In support of Mr Ristevski’s disavowal of his status as a director, and apparently either ignoring or misunderstanding the Board’s explicit request to produce a signed version of the 29 March 2019 document, Mr Ristevski’s 14 May 2019 letter attached the following documents:-

    (a)a director’s resignation dated 11 August 2006 and signed by Mr Ristevski.

    (b)a director’s consent dated 11 August 2006 and signed by Ronald Jager (of a post code 2321 address).

    (c)minutes of an 11 August 2006 company meeting recording a resolution to accept Mr Jager’s appointment, and Mr Ristevski’s resignation, as a director of Mack Partners Pty Ltd.

    (d)a form dated 1 May 2019:- notifying a change of directors (said to have been effected on 11 August 2006) – from Ronald Jager (dob 28 January 1973[10]) to Ronald Jager (dob 13 December 1964 & post code 2321).

    [10]          The 28 January 1973 date is Mr Ristevski’s date of birth.

17. A further matter addressed in the 14 May 2019 letter from Mr Ristevski’s solicitors was his status as a director of Korzo Investments Pty Ltd, the trustee of the Ristevski Unit Trust.  The 6 September 2016 disqualification decision reasons had alluded to an amended December 2014 quarter GST assessment, and an associated penalty assessment, relating to the company’s sale of a property. The reasons had described Mr Ristevski as its sole director, and thus personally responsible for the inaccuracy in the contentious business activity statement (“BAS”). That was not a matter that had previously been raised by the Board but it was dealt with in the 14 May 2019 letter as part of the response to the Board’s general request to address “the allegations” in the decision reasons. In so doing, the letter contended Mr Ristevski had not been a director of Korzo Investments Pty Ltd since 20 August 2007, and submitted a 13 May 2019 ASIC search apparently corroborating that contention.

18. A little over two months later, on 26 July 2019, the Board wrote to Mr Ristevski and provided him with a copy of a 29 page “Submission”. The submission document (with hundreds of pages of attachments) detailed the matters that were the subject of the Board’s investigation and indicated the potential Code breaches to which they related.  Those matters included the following:-

    (a)The numerous apparent taxation obligation defaults listed in the 6 September 2016 disqualification decision statement of reasons, apparent delays or defaults in the lodgement of business activity statements by two companies[11] and the non-disclosures relating to both those defaults and the disqualification decision itself.

    (b)The alleged falsity of Mr Ristevski’s (pre 20 March 2019) denial of awareness of the disqualification decision.

    (c)The alleged falsity of Mr Ristevski’s explanation in relation to four of the superannuation funds listed in the Commissioner of Taxation’s 6 September 2016 reasons for decision.

    (d)The apparent falsity of Mr Ristevski’s disavowal of his status as a director of Mack Partners Pty Ltd, Raptor Motors Ltd / Pty Ltd (prior to its 2012 de-registration) and Korzo Investments Pty Ltd (prior to its 22 August 2018 liquidation).

    (e)An asserted failure to take reasonable care in relation to the substantiation of expenses claimed in the income tax returns for seven clients.

    (f)Failing to behave in a reasonable and timely manner in response to enquiries from the Board.

    [11]          C&NOL & C & N Turnaround Solutions Pty Ltd.

19. The 26 July 2019 submission also raised a new matter relating to Korzo Investments Pty Ltd. Relying on a report from the company’s liquidator, it noted (i) an outstanding tax debt approximating $190,000[12], (ii) outstanding tax return lodgements for two financial years, (iii) outstanding business activity statements relating to an 18 month period and, (iv) the appearance that the company had traded whilst insolvent. In the light of those various concerns, the submission also drew attention to Mr Ristevski’s status as the “public officer” of the company, and to a lease document he had executed in December 2014, apparently as a director of the company. Those matters apparently highlighted the potential significance of the accuracy of Mr Ristevski’s previous disavowal of status as a director of the company.

    [12]          The submission noted that, in November 2018, the ATO had “written off” the debt.

20. Mr Ristevski’s detailed response to the Board’s “Submission” document was set out in a 6 September 2019 letter from his solicitors. It repeated the previous explanations that (prior to receiving the Board’s 20 March 2019 letters) Mr Ristevski has not been aware of the 6 September 2016 disqualification decision. 

21. In relation to the proposition that Mr Ristevski had not disclosed the various taxation obligations that appeared to have been outstanding at the time of each of the renewal applications and Annual Declarations, identified in the Board’s submission document, the letter asserted Mr Ristevski had honestly believed he had “lodged” all his tax obligations.  It added that he had since taken steps to ensure that all of his tax obligations were “up to date”.

22. That assertion of having brought his taxation obligations “up to date” necessarily implied an acceptance of the fact of some past defaults. In that context Mr Ristevski:-

    (a)acknowledged that (in addition to 2013 & 2014 tax years:- see paragraph 25(c) above) he had been several months late in lodging his income tax returns for each of the 2016 and 2017 tax years, but attributed those delays to the personal difficulties associated with his daughter’s ongoing ill health, and pointed out that in each year he had been entitled to a refund.

    (b)acknowledged C&NOL’s business activity statement lodgement delays (which were most significant from about March 2015 until February 2018), but sought to attribute them to his own health problems, and claimed that the Board’s material showed that the lodgements were currently up to date. 

    (c)asserted that the apparent business activity statement lodgement delays by C & N Turnaround Solutions Pty Ltd (relating to the period after October 2016) was a result of the company’s GST registration (which he said occurred after his 15 October 2018 resignation as director of the company) having been backdated to 1 July 2016.

    (d)at least implicitly, acknowledged that between about early May 2017 and late 2018 C&NOL (as the trustee of the accountancy business) had accumulated a significant tax debt. As at February 2019 the total debt approximated $148,000, but was subject to a monthly repayment agreement with the ATO.

23. The letter then addressed the position of the five companies that had been specifically identified in the Board’s “Submission” document as having outstanding tax obligations as at (one or more of) September 2016, October 2017 and October 2018. The letter substantially asserted that (i) at the relevant times, Mr Ristevski had no status as a director of two of the companies[13] and, (ii) none of the other companies (which included C&NOL) had been required to submit income tax returns in any event.

    [13]Classic Kitchens and Interiors Pty Ltd (the trustee of the Ristevski Family Trust) and Mack Partners Pty Ltd.

1. Other parts of the 6 September 2019 solicitor’s letter addressed the suggestion that Mr Ristevski’s previous explanations to the Board, denying his status as a director of three particular companies, had been misleading. The contents of the letter, and the companies to which they related, were to the following effect:-

   (a)Mack Partners Pty Ltd:- The ASIC records indicating that Mr Ristevski had been a director of Mack Partners Pty Ltd on 19 August 2009 and 18 April 2011 (despite his previous denial of director status:- see paragraph 25(b) above) related to instances where he had been appointed as a director “for a single day” and just for the purpose of facilitating timely lodgement of the particular forms. (Mr Ristevski gave no explanation for the contents of the 29 March 2019 form to which the Board’s 10 April 2019 email had previously drawn attention. I have noted earlier the possible oversight involved in his solicitor’s previous failure to appreciate and comment on, the potential significance of that document:- see paragraph 32 above.)

   (b)Korzo Investments Pty Ltd (as trustee of the Ristevski Unit Trust):- Mr Ristevski had not been involved in the preparation or submission of the contentious business activity statement for the December 2014 quarter. The company had its own accountant and tax agent. Subsequent to the Board’s submission document, the company liquidator had abandoned the prospect of any insolvent trading claim against the company directors. (The attachments to the Board’s 26 July 2019 submission included documents that Mr Ristevski had executed as a director in September 2011 and December 2014 – in apparent contradiction to his earlier disavowal of any status as a director of the company:- see paragraph 33 above.) The assertion made in the 6 September 2019 letter was that Mr Ristevski had been appointed as a director of Korzo Investments Pty Ltd on those days, solely for the purpose of executing the particular agreements.

   (c)Raptor Motors Pty Ltd:- (Mr Ristevski had previously asserted his resignation from the company in November 2004:- see paragraph 26 above. That claim was apparently contradicted by a 24 June 2019 company search, which recorded the cessation of his director status on 3 November 2011. It was also inconsistent with both (i) a 20 December 2010 change of company directors, apparently lodged by Mr Ristevski as a director, and (ii) a February 2010 letter of resignation that had been addressed to him as “Chairman” of the company.) The 6 September 2019 response letter (perhaps mislead by the imprecision of the reference in the Board’s submission) inaptly referred to another ASIC record and failed to advance any explanation for the appearance that Mr Ristevski had still been occupying a role as a director of the company during the course of 2010.

2. The 6 September 2019 solicitor’s letter addressed four other topics, to the following effect:-

   (a)Denial of audit work involving superannuation funds:- (Perhaps significantly, the Board’s submission document did not appear to dispute Mr Ristevski’s previous explanation that he had not in fact audited any of the SMSF that the 6 September 2016 disqualification decision reasons had characterised as having been improperly / irregularly established:-  see paragraph 31 above.) The 6 September 2019 letter attempted to identify the precise nature of the “falsity” the Board contended arose from the previously provided information. Having done so, it rejected each of those matters, and provided some additional documents. Those documents arguably corroborated the various rejections. 

   (b)The audit independence complaint:- The 6 September 2019 letter disputed that there was an absolute prohibition against a person being named / acting as both an auditor and tax agent for the same entity.[14]

   (c)Disallowance of work related expenses in client tax returns:- The TASA s 30-10(7) Code obligation is to provide tax agent services “competently”, it does not require an audit of clients’ affairs. Mr Ristevski / C&NOL use and apply a “checklist” procedure for the purpose of ensuring that client returns are prepared with reasonable care. The expense disallowances resulting from the ATO audits identified in the Board’s submission related to a very small number of clients, and were not due to any personal default on Mr Ristevski’s part. The audit disallowances may have arisen not because of any deficiency when the contentious returns were compiled and submitted, but rather from the inability to obtain corroborating information from the clients during the course of the subsequent ATO audits.

   (d)Conduct relating to Board investigation of client complaints:- In relation to the first matter, the letter did not repeat the explanation that had been given in previous responses to the Board:- see paragraph 27 above. In relation to the second matter, which was based on a partial account of a telephone conversation between Mr Ristevski and the trustee in bankruptcy of a former client, Mr Ristevski had merely sought to discuss the client’s complaint, and nothing improper had occurred.

   [14]SIS Act s 128F(d) requires “an approved SMSF auditor” to comply with prescribed independence standards. The prescribed standards are the Code of Ethics for Professional Accountants (APES 110) produced by the Accounting Professional and Ethical Standards Board Limited:- see Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 9A.06. As at 2016 the APES 110 Code was a 133 page document. It addressed the provision of various tax agent services to audit clients in paragraphs 290.181 – 290.183. Those paragraphs arguably did not impose an unqualified prohibition. The 2018 version of the APES 110 Code is a 211 page document. That version of the APES 110 Code contains both specific rules and contextual guidance on the application of the rules. It deals specifically with the independence requirement of auditors in Part 4A. Those provisions do not appear to contain a blanket prohibition against an auditor providing any tax services to an audit client. For these reasons, the specific application of the APES 110 Code provisions may require detailed analysis and application to the particular conduct and services involved.

   The formal grounds for the Board’s September 2019 termination decision

3. The Board’s investigation found that Mr Ristevski had breached the Code obligations relating to:-

   (a)acting honesty and with integrity:- TASA s 30-10(1),

   (b)complying with taxation laws:- TASA s 30-10(2),

   (c)competently providing tax agent services:- TASA s 30-10(7),

   (d)taking reasonable care in ascertaining a client’s affairs before doing things on the client’s behalf:- TASA s 30-10(9),

   (e)not knowingly obstructing the proper administration of taxation laws:- TASA s 30-10(11), and

   (f)responding appropriately and reasonably to requests and directions from the Board:- TASA s 30-10(14).

   The principal bases for the Board’s decision

4. The 6 September 2016 disqualification decision (see paragraph 22 above) was a major element in the Board’s reasoning. The Board considered the disqualification, and the many income tax return and business activity statement lodgement defaults listed in the decision reasons, were things he should have disclosed, but did not disclose, in renewal applications and annual compliance declarations to the Board.  Furthermore, the Board considered that, in the 5 April and 14 May 2019 responses, Mr Ristevski had dishonestly claimed to have been unaware of the disqualification decision, at the time of those applications.

5. Nothing in either the Board’s 26 July 2019 submission document or the minutes of the Board’s 19 September 2019 meeting disclose the basis for the Board’s satisfaction about the dishonesty of Mr Ristevski’s asserted ignorance of the disqualification decision. It may have reflected a scepticism of the credibility of his claim, having regard to the ordinary reliability of the postal delivery and an expectation that, having replied to the Commissioner’s 19 August 2016 position paper, Mr Ristevski’s self-interest would have prompted enquiry about the Commissioner’s final decision. But scepticism is one thing, and satisfaction about actual dishonesty is another. The objective reality is that, on the presently available material, there does not appear to be any explicit contradiction of Mr Ristevski’s claim. On the contrary, his asserted non-receipt of the ATO decision notice appears to be supported by some objective evidence in C&NOL’s mail receipt and management records. In those circumstances, this significant adverse finding by the Board may well be open to contradiction, and ultimate rejection, in the review proceedings.

6. The applications and declarations relating to Mr Ristevski’s personal registration had been made in September 2016, October 2017 and October 2018. Those relating to C&NOL had been made in March 2017, April 2018 and April 2019.

   (a)The 20 September 2016 & 10 March 2017 renewal applications:- The Board’s online application template relating to Mr Ristevski’s personal renewal application enquired whether there were any matters that might adversely affect an applicant’s “good fame, integrity and character”. It illustrated the nature of the enquiry by providing two non-exhaustive examples:- (a) previous tax agent registration refusal or termination, and (b) outstanding “personal tax obligations”, relating to either lodgements or debts. The template relating to C&NOL’s renewal application enquired more generally as to whether there were any matters that might affect the company’s eligibility for registration, but did point out that its directors were themselves required to be a “fit and proper person”.

   (b)The Annual Declarations of October 2017, April and 17 October 2018, April 2019:- The Board’s Annual Declaration template form relating to registered individuals contained similar questions relating to the “fit and proper person” registration requirement and tax obligations. In relation to the former, the enquiry whether any matters adversely affected the person, the template gave the illustration of “any disciplinary action by a regulator or professional association”.  In relation to its enquiry whether the person had “any overdue personal tax obligations” the form referred to both the requirement for timely lodgement of tax returns and activity statements, and payment of all required amounts (or payment arrangements relating to them). 

   (c)The Board’s Annual Declarations template relating to incorporated tax agents changed its content between April 2018 and April 2019 (the latter form being comparatively more specific). But both forms paralleled the fitness and tax obligation enquiries contained in the template relating to individual registered agents. Their enquiry relating to fitness was directed to events concerning “any of the current company directors”. The enquiry relating to taxation obligations (either lodgement or debt) referred to those of “the company, or any of the company’s directors”.

7. Mr Ristevski had answered “no” to all of the taxation obligation enquiries in the various renewal applications and declarations. With one exception, he had given a similar “no” answer to all of the “fit and proper” questions. That sole exception related to the “fit and proper” enquiry in the 30 April 2019 Annual Declaration concerning C&NOL. He answered “yes” to the question enquiring whether anything had happened to affect a determination as to whether any of the company directors was a “fit and proper person”.  His affirmative answer was, no doubt, a consequence of the contents of the Board’s 20 March 2019 letter, given its reference to the September 2016 disqualification decision.

8. In his 5 April 2019 response to the Board Mr Ristevski had claimed there were no current lodgement defaults. That assertion was reflected in the Board’s 26 July 2019 submission document, which noted that many of the outstanding returns had been lodged on 26 and 27 March 2019. Many of those were “nil” returns, apparently consistent with Mr Ristevski’s assertion that they related to non-trading entities. At the time of making its September 2019 decision the Board was aware of those lodgements, and understood that the ATO regarded Mr Ristevski as not having any outstanding tax obligations. However, the Board took into account the previous lodgement defaults. It also took into account delays, by both C&NOL and another practice-related entity (C & N Turnaround Solutions Pty Ltd) in the lodgement of business activity statements. 

9. In Schedule 1 to these reasons I have attempted to present an overview of the various lodgement delays and defaults remarked upon in both the September 2016 disqualification decision reasons and in the Board’s 26 July 2019 submission document. In so doing, I have included:-

   (a)an impressionistic differentiation between (i) entities associated with Mr Ristevski’s accountancy / tax agent practice, (ii) entities that appear to have some association with Mr Ristevski’s family and, (iii) other entities of which he appears to have been a director,

   (b)details of the lodgements that appear to have been outstanding at the time of the various renewal applications and Annual Declarations noted above,

   (c)details of Mr Ristevski’s apparent status (either as a director or public officer) of each entity, and

   (d)various notes that draw on information contained in the Board’s 26 July 2019 submission document, and on Mr Ristevski’s various explanations.

10. The information outlined in Schedule 1, understood against the background of the more detailed information on which it draws, admits of the following propositions:-

    (a)since a minor delay concerning his 2012 return, Mr Ristevski has typically not been timely in relation to his own individual taxation obligations:- see Schedule 1:- rows 8 & 9, columns J to Q.

    (b)C&NOL, the trustee entity that conducts Mr Ristevski’s accountancy / tax agent business did indeed have outstanding lodgement obligations (relating to either income tax returns or business activity statements) at the time of the renewal applications or Annual Declarations noted by the Board:- see Schedule 1:- rows 11 & 12, columns S to X.

    (c)there is no (currently available) evidence to establish that the entities “associated” with Mr Ristevski’s family interests had any lodgement defaults after 10 December 2016:- see Schedule 1:- rows 17 to 23, columns N to X.

    (d)in the case of the three entities in relation to which Mr Ristevski reputedly had status as a director:- (i) in one case, the Board’s own submission document indicated that returns were not necessary (Raptor Motors:- see Schedule 1:- row 29 & Note [7]), (ii) in a second case, Mr Ristevski asserts the entity is a mere trading name, and no lodgement default was relied on by the Board in relation to the renewals and declarations (Mack Partnership:- see Schedule 1:- row 28 and Note [11]), and (iii) in the third case, Mr Ristevski’s status as a director is contested (Mack Partners:- see Schedule 1:- row 26).

11. The precise nature of the defaults (indicated in Schedule 1) by C&NOL, Chan & Naylor Liverpool Goodwill Pty Ltd (“C&NGL”) and C & N Turnaround Solutions Pty Ltd in relation to the lodgement of income tax returns has not been made entirely clear in the presently available material. The Board’s 26 July 2019 submission document expressly distinguished between “trust” and “company” income tax returns, and identified only “company” lodgement defaults in relation to each company, even though their respective trustee functions had been disclosed. In addition, both the Board’s submission and the earlier ATO disqualification decision reasons, noted that in some instances no income tax returns were in fact required to be lodged. Those matters suggest both a deliberate discrimination between “company” and “trust” lodgement obligations and compliance, and an acceptance of the proposition that some entities were not in fact required to provide a return. But neither of those matters was materially addressed in the Board’s submission, nor in the minutes of the Board meeting on 19 September 2019 nor in any of the communications between the parties. It may be necessary in due course to examine with some precision the actual content of the lodgement obligation in each of the relevant tax years.[15] Finally, as the information in Schedule 1 indicates, all of C&NOL and C&NGL’s outstanding income tax returns were lodged on 26 March 2019 and were, presumably, part of the “bulk” and “nil returns” lodgements noted in the 19 September 2019 Board minutes.[16] If that is the case, and the “nil” returns are proper, that may be a relevant consideration to take into account in assessing the significance of the lodgement defaults involved.

    [15]The requirement to lodge an income tax return appears principally to derive from the combined effect of Income Tax Assessment Act 1936 (Cth) (“ITAA 36”) s 161, and the content of the notices contemplated by ITAA 36 s 161.

    [16]C & N Turnaround Solutions Pty Ltd company tax return for the 2017 tax year (lodged on 27 October 2018) was also, according to Mr Ristevski, a “nil” return.

12. Whatever proves to be the significance of the various income tax return lodgement delays and defaults by C&NOL and C&NGL, details in the Board’s 26 July 2019 submission indicated (and Mr Ristevski’s solicitor’s 6 September 2019 response did not dispute) that C&NOL’s business activity statements for the period from October 2014 to December 2015 had not been lodged until April 2016. Its statements for the April to June 2016 quarter had not been lodged until January 2018, and those for the period from July 2016 to October 2017 had not been lodged until March 2018.[17] All of those BAS lodgement obligations appear to have related to C&NOL in its role as the trustee conducting Mr Ristevski’s accountancy / tax agency business.  

    [17]I leave out of account, for present purposes, the apparent BAS lodgement delays by C & N Turnaround Solutions Pty Ltd – having regard to the explanation proffered by Mr Ristevski:- see paragraph 38(c) above.

13. By 10 May 2017 C&NOL, in its trustee capacity, had a tax debt of about $17,000. By February 2019, when it became subject to an agreed payment plan, C&NOL’s tax debt had grown to about $149,000. The circumstances leading to that increase in the tax debt may relate to the belated lodgements referred to in the preceding paragraph, but that has not been demonstrated in the presently available material. By June 2019, the outstanding tax debt had been reduced to about $73,000.

14. There are obvious difficulties in providing acceptable explanations for a failure to comply with BAS lodgement obligations, particularly obligations owed by the operating entity of a tax agent’s business. The only explanation that has hitherto been proffered on Mr Ristevski’s behalf is the, rather general, assertion that it was the combined result of his own mental health condition and a cluster of deaths of close family members. That explanation, given its current poverty of detail, is quite unpersuasive, but correspondingly cautions against attempting to arrive, at this stage, at any conclusively adverse view about Mr Ristevski’s ability to achieve a significantly more favourable outcome in the review proceedings.

    “personal” tax affairs 

15. In the light of the overview summarised in Schedule 1, and the earlier parts of these reasons, it may ultimately be appropriate to approach the review proceedings on the basis that the only material taxation obligation defaults (at the time of the various renewal applications and Annual Declarations) were those of entities associated with Mr Ristevski and, most specifically, those of C&NOL. That possibility will focus attention on the content of the TASA s 30-10(2) obligation for a registered tax agent to comply with “the taxation laws in the conduct of your personal affairs”.

1. The TASA provisions do not define either the term “personal affairs” or the expression “personal tax obligations” (which appears in some versions of the renewal application and Annual Declaration forms:- see paragraph 45 above.). The Board’s Explanatory Paper TPB 01/2010 suggests, perhaps somewhat ambiguously, that the concept of personal affairs includes the taxation obligations “of the registered tax practitioner practice”, apparently relating to maintenance of registration and appropriate communications with the Board:- see TPB 01/2010 at paragraph [38]. In the absence of an explicitly inclusive definition the term “personal tax obligations” could be taken as intended to distinguish between obligations for which a tax agent has a personal responsibility as the obliged taxpayer, and those of a corporate entity of which the taxpayer is a mere officer or employee. Such a view is at least consistent with the conventionally accepted recognition of corporate entities having a distinct legal personality from their office holders and shareholders. 

2. However that accepted conceptual distinction may not warrant the further conclusion that the concept of “personal affairs” can never extend to include the affairs of a corporate entity. Whether it so extends is likely to depend on the particular circumstances. A person who has been appointed as the “public officer” of a company or trust estate operating in Australia is personally responsible for the entity’s compliance with obligations arising under the Income Tax Assessment Act 1936 (Cth) (“ITAA 36”) and under any indirect tax law (i.e., including GST):- see ITAA ss 252(1)(f) & 252A(9), Taxation Administration Act 1953 (Cth) Schedule 1 s 444-10. Furthermore the taxation related defaults of a corporation of which a tax agent is the controlling director (especially where the corporation is itself a registered tax agent) may properly be regarded as bearing upon his “fitness” for registration:- see Delis v Tax Practitioners’ Board [2016] FCA 570 at [41] & [42]; Delis v Tax Practitioners’ Board [2015] AATA 820 at [99]-[103]; Carter v Tax Practitioners Board (Taxation) [2017] AATA 528 at [60]. That is particularly the case where (as indicated earlier:- see paragraph 45(c) above) the incorporated tax agent is expressly required to disclose whether or not “the company, or any of the company’s directors” has any overdue tax obligations.

3. The information outlined in Schedule 1 suffices to suggest that Mr Ristevski may have difficulty in establishing the honesty of his answers to (at least) the questions in the renewal application, and Annual Declarations, relating to C&NOL. However, in the 6 September 2019 response to the Board, he has made the positive assertion of his honesty. The credibility of that assertion is not appropriate to be assessed, in any determinative way, at this stage of the review proceedings.

   Other matters influencing the Board’s decision

4. Five other matters appear to have influenced the Board’s September 2019 termination decision. Those matters, which I discuss in following sections of these reasons, were:-

   (a)the assertedly misleading disavowals of director status in the solicitor’s April and May 2019 letters.

   (b)Mr Ristevski’s asserted personal responsibility “as a former company director” for the debts of Korzo Investments Pty Ltd.

   (c)his asserted lack of independence in relation to the audit of some SMSF.

   (d)his lack of competence in relation to expenses claimed in client income tax returns.

   (e)his inappropriate conduct relating to Board communications about client complaints.

   The disavowal of director status

5. These matters had been raised in the Board’s 26 July 2019 submission document, and responded to in Mr Ristevski’s solicitor’s letter of 6 September 2019:- see paragraphs 34(d) & 40 above. In the latter of those paragraphs I outlined the substance of the solicitor’s responses. There, and in the Schedule 1 (see e.g., Note [1]), I have indicated respects in which various aspects of Mr Ristevski’s disavowals are arguably consistent with, or apparently contradicted by, search records and other documents. In the minutes of the 19 September 2019 meeting the Board records having “noted” Mr Ristevski’s solicitor’s responses, but there is nothing to indicate the actual significance that was accorded to them in the decision.

6. The presently available material does give rise to unresolved doubts about the accuracy and honesty of Mr Ristevski’s various disavowals of his status as a director of the three corporations Korzo Investments Pty Ltd, Raptor Motors Ltd / Pty Ltd and Mack Partners Pty Ltd. As the July 2019 Board’s Submission noted, there are apparently significant pieces of evidence tending to suggest that Mr Ristevski’s disavowals are not all accurate.  In addition, his various apparent assertions about having been appointed for single days, for the purpose of lodging returns or executing documents, invites sceptical evaluation.  But that evaluation will likely require a more thorough and informed evidentiary consideration than is appropriate to conduct on the presently available information.

   Personal involvement in Korzo INVESTMENT / RiStevski Unit Trust debt

7. Earlier in these reasons I summarised the contents of both the September 2016 ATO disqualification decision and the Board’s July 2019 Submission relating to the taxation defaults of Korzo Investments Pty Ltd:- see paragraphs 33 & 35 above. I also indicated Mr Ristevski’s response to those matters, including the explanation that, subsequent to the Board’s September 2019 decision, the company liquidator had abandoned any prospect of a claim against the company directors for insolvent trading:- see paragraph 40(b) above.

8. Against the background of that information, the Board minutes of 19 September 2019 are confoundingly opaque in revealing the basis on which the circumstances of Mr Ristevski’s involvement with Korzo Investments Pty Ltd influenced its consideration. The minutes merely record that the Board “noted” Mr Ristevski’s responses, before proceeding to find both that “as director” he had misreported the company’s trading result for the December 2014 quarter, and that “as a former company director” he had failed to “discharge his obligations” in the liquidation of the company.

9. As I have noted in Schedule 1 (see Note [1]) there is some apparent support for the proposition that Mr Ristevski had ceased to be a director long before 2014. He had also pointed out to the Board (in the 6 September 2019 submissions) that (i) Korzo Investments had its own tax agent and accountant, and (ii) he had not been involved in the preparation of the December 2014 business activity statement. Against that background the factual basis for the Board’s two findings relating to this company seem to be capable of challenge. Again, that is not a challenge that is appropriate to take up, and attempt to resolve, in the context of the present application.

   Audit independence

10. The Board concluded Mr Ristevski had breached the taxation law compliance obligation in TASA s 30-10(2) because of a lack of independence in relation to the audit of superannuation funds where he was listed as the tax agent of the funds. The minutes of the Board’s 19 September 2019 meeting record that in making this finding the Board “noted” the response his solicitor’s had made to the 26 July 2019 submission. There is, however, another element of opacity about that proposition. Mr Ristevski’s responses had made two main points. The first was that, in most cases, Mr Ristevski had not in fact audited the funds:- see paragraph 31 above. The second, which seems to be consistent with a tenable reading of the relevant standards, is that there was no absolute prohibition against a person simultaneously performing the roles of tax agent and auditor:- see paragraph 41(b) above. It is not clear that the Board really addressed these submissions. Perhaps that was because they potentially raise factual issues that were not capable of being resolved fairly and confidently on the material that was then available to the Board. No additional material has been provided for the purpose of the present application, and in that state of affairs, I am again not satisfied that this particular ground should be regarded as influential (adversely to Mr Ristevski) in the determination of his stay application.

    Disallowed expense claims in client returns

11. These matters appear to involve seven clients and variously relate to income tax returns for 2015, 2016 and 2017. In most cases, the expense disallowance resulted from an ATO “audit” of the particular returns. In some instances, the audit process appears to have involved a minute examination of a number of small amounts. The overall audit process was the subject of an ATO “client engagement manager report” in April 2018. It did indicate that the principal reason for the errors in the returns were (i) insufficient questioning of clients and (ii) inadequate assessment of the client information. But it is not at all clear what level of personal responsibility or involvement Mr Ristevski had with the particular returns. Nor is there a clear basis for characterising these deficiencies as relevantly informative of Mr Ristevski’s overall competence and diligence in the provision of tax agent services. His evidence was that his practice had a total client base approximating 2,500. If that figure is even approximately accurate, the comparatively small number of matters identified by the ATO and relied on in the Board’s submission, may tend to favour an assessment that these matters are aberrant, rather than warranting an adverse assessment of Mr Ristevski. That possibility seems to be consistent with the ATO’s overall assessment, in the April 2018 report, that C&NOL’s work related expense profile in client tax returns approximated that expected from, or typical of, similar tax agent practices. Against that background, an informed assessment of the significance of these particular matters would require a careful examination of each matter. That kind of examination does not appear to have been undertaken or expressed in the currently available material, and is neither appropriate nor possible to embark upon in determining the current stay application.

    Dealings with the Board – client complaints

12. The matters addressed in the 19 September 2019 Board minutes as indicating breaches of the Code obligations in TASA s 30-10(11) & (14) relate to two incidents. The first of those was a telephone conversation between Mr Ristevski and a Board officer on 24 September 2018. The second involved Mr Ristevski’s alleged conduct in a telephone conversation on 29 July 2019 with a person who was the trustee in bankruptcy of one of the clients whose tax return expense claims had been disallowed, and who had complained to the Board about Mr Ristevski’s conduct relating to that client.

13. The first matter had been the subject of Mr Ristevski’s explanation and apology in the 5 April 2019 letter from his solicitors. In the course of the present application the Board’s contention was that Mr Ristevski’s explanation, in so far as it disavowed awareness that he was in fact speaking to a Board officer, could not be believed, because the Board Officer’s record of the conversation noted that she had identified herself at the outset of the call. There is an undeniable logic to that proposition, but it assumes that Mr Ristevski believed the identification. There are at least two reasons that may support the view that he did not. The first is that the officer’s record attributes to Mr Ristevski the statement that she was “too stupid to work at the ATO”. The second is that immediately following the phone conversation the Board officer sent Mr Ristevski an email. In that email she thanked Mr Ristevski for his “time on the phone”, stated that the Board had received a complaint, provided a “complaint explanation” document, requested his response, and drew his attention to the Code obligation in TASA s 30-10(14). The email made no complaint about Mr Ristevski’s conduct during the phone call. What is potentially significant about those matters is that (i) the “too stupid” remark is arguably consistent with disbelief of the reliability of the asserted announcement, (ii) the email content may perhaps be regarded as a message sent to corroborate the fact of a genuine complaint having been made and, (iii) the absence of express complaint about what Mr Ristevski had said during the phone call perhaps reflects a contemporaneous understanding that it was an aberrant reaction related to doubt about the authenticity of the caller. These possibilities are not matters that are either capable of, or appropriate for, resolution on the currently available information.

14. The second matter, dealing with the 29 July 2019 conversation, had (obviously) not been dealt with in the Board’s 26 July 2019 submission document. It had however, been the subject of an explanation request from a Board officer. That request attributed to Mr Ristevski a statement that he wanted to “meet someone like you face to face, and look you in the eye”. The Board minutes of 19 September 2019 dealt with this matter on the basis that (i) Mr Ristevski had never responded to it and, (ii) it was properly to be characterised as an attempt to threaten the complainant. The Board was wrong about the first basis, because the 6 September 2019 response explicitly denied the conversation. Perhaps more importantly, the explanation took issue with the principal basis of the complaint (which was that Mr Ristevski could not have provided proper advice, because the client had neither the education or the English skills to have given the information in the tax return). Mr Ristevski pointed out that he had a fluent Vietnamese speaking staff member who was present at all the client meetings. That background perhaps also casts doubt on the second basis on which the Board dealt with this matter. The doubt is as to whether the actual statement attributed to Mr Ristevski is properly to be interpreted as a “threat” (as distinct from resentment at the essentially speculative assertions contained in the trustee’s complaint). On the limited material presently available that doubt may be justified, but it is again not a matter appropriate for determinative consideration in the context of the present application.

    Overview of the Board’s adverse findings

15. It will be apparent from what I have said that Mr Ristevski may face difficulty in demonstrating his ongoing fitness for registration. That difficulty emerges (most apparently) from (i) his own tardiness in lodging his personal tax returns, (ii) the apparently conceded taxation obligation defaults and debts of C&NOL and (iii) from the content of some of the renewal applications and Annual Declarations. On the other hand, Mr Ristevski appears never to have had a personal tax debt and has positively asserted the honesty of the information he provided in the various renewal applications and declaration documents. And, in relation to the lodgement defaults involving C&NOL he has asserted that there are material exculpating considerations in the dramatic exigencies of his personal circumstances, considerations that have not been significantly explored for the purposes of the present application.

16. Although the matters to which I have referred in the preceding paragraph present themselves from the currently available information as those most likely to be informative in any assessment of Mr Ristevski’s registration fitness, there are a number of other matters that appear to have influenced the Board’s September 2019 decision. As to some of those matters (including some of the findings that his responses to the Board were dishonest), the apparent opacity of parts of the Board’s minutes, and the formulaic description of “noting” the responses made on Mr Ristevski’s behalf, (observations I make without intending to convey criticism of the Boards process or the quality of its deliberation) do detract from confidence in the appropriateness of attaching additional significance to those matters.

17. All of the preceding considerations suggest that assessing the ultimate significance of Mr Ristevski’s apparent lodgement defaults, and his responses in the various renewal and declaration documents, may be a matter of debate. The latter are likely to require careful examination of the various corporations identified in the Board’s submission, the nature and extent of Mr Ristevski’s personal activities in relation to them, his understanding of the scope of the enquiry contained in each question, and his subjective belief in the adequacy of his response. Those are matters that cannot be addressed adequately at this stage of the review proceedings.

    Mr Ristevski’s personal circumstances

18. Mr Ristevski has a Bachelor of Commerce degree. He is recorded as being a member of CPA Australia, and he acknowledges a background of having worked both for an accounting firm and in “other areas”. He says, however, that his sole income since 2010 has been for work as a tax agent. Since at least August 2013, the business structure under which Mr Ristevski has worked as a tax agent, has been under the Chan & Naylor brand name. (The brand is described in some marketing material, though perhaps not entirely accurately, as a partnership or joint venture.)

19. The accurate description of Mr Ristevski’s business appears to be that it operates as “an accounting practice” conducted by his solely controlled company, C&NOL as the “trustee of the Chan & Naylor Liverpool Operating Trust”.[18] The trustee company, which is itself a registered tax agent, uses the Chan & Naylor name under a 28 August 2013 licence agreement with Chan and Naylor Australia Pty Ltd. Under the terms of the licensing agreement Mr Ristevski’s company acquires the right to use the Chan & Naylor “name, brand and logos”, products, business documentation, client lists and information technology infrastructure, as well as its Operations Manual and “Best Practice material”. The license period is unlimited, but terminable by the Chan & Naylor licensing entity in various circumstances. Those circumstances include (i) a non-consensual change in the control of C&NOL, (ii) the Licensor’s subjective opinion that C&NOL has committed a fundamental breach of the licence agreement, and (iii) the Licensor’s subjective opinion that C&NOL has acted in a way that may have the potential to detrimentally impact on the Licensor’s business and that conduct has not been remedied within 24 hours of any rectification notice. It is at least arguable that any breach of the licensee’s explicit obligation to “conduct the Business in such manner so as not to damage or diminish” the value of the Licensor’s Intellectual Property and Systems, could provide a basis for the Licensor’s termination of the August 2013 agreement.

    [18]From June 2014 until January 2016 the business may have operated under the name Chan & Naylor Corporate Turn Around Solutions:- see the TPB submission at T3 page 111. According to the notes of an interview with Mr Ristevski, C&NOL may have begun operating as the trustee of the Chan & Naylor Liverpool Operating Trust only during the 2014 tax year:- see TPB submission at T3 page 144.

20. Mr Ristevski paints a gloomy picture of the future of the practice business, its staff and clients, if the Board’s 19 September 2019 decision were not to be stayed. One point that Mr Ristevski did not raise, but which was articulated by his Counsel (in response to a question I raised) was the risk that Chan and Naylor Australia Pty Ltd might terminate the August 2013 licence agreement, and the likelihood that such a termination would have a an adverse impact on the company’s ability to generate income and meet its expenses. In that context Mr Ristevski pointed to C&NOL’s trading statement for the 12 months to 30 June 2019, its average monthly operating costs (excluding tax) approximated $90,000.  That appears to have included a monthly wages (and “contractors”) and superannuation bill of about $63,500. Mr Ristevski estimates that when interest and other office costs are added to that amount, the practice’s unavoidable monthly costs exceed $70,000. He apprehends that the loss of his registration would very severely limit, and perhaps eliminate, the practice’s revenue. He says that, within months he would not have the means to continue to have the practice operate, and that its closure or collapse would adversely affect both clients and employees. 

1. He also says that he has minimal savings and that the combined cost of meeting his current financial obligations, and the ongoing support of his wife and five children, would likely so deplete his financial resources as to preclude him from prosecuting the review proceedings to finality.

2. The accounting practice staff has eight full time employees, four of whom are not Australian permanent residents. Mr Ristevski has suggested, although there is no currently available authoritative information to establish, that their immigration status is as a holder of a working visa, and at risk of being jeopardised if their employment were to be terminated as a consequence of the September 19 termination decision. 

3. The precise details of the qualifications and experience of these various staff members was not described in any detail. However, Mr Ristevski said his role in the business was marketing, supervision and performance of the more complex work. That description, plus the number of full time staff, and the information that the practice has about 2,500 current clients, suggests that a considerable part of the practice work is performed by persons other than Mr Ristevski. However, Mr Ristevski’s September 2016 renewal application indicated that (i) about 80% of his work involved provision of tax agent services, (ii) he was typically involved in the preparation of something in the order of 1,000 tax returns for individual clients, and a few more than 100 company, trust and superannuation trustee returns. In addition, Mr Ristevski correctly points out that C&NOL’s continued status as a registered tax agent depends on its having individual registered tax agents of sufficient number and competence to maintain the company’s registration eligibility:- see TASA s 20-5(3)(d)(i) & paragraph 15 above. In C&NOL’s March 2017 renewal application Mr Ristevski said that he “reviewed and supervised” all the tax agent work done in the practice.

4. Mr Ristevski points out that he is currently the only currently registered tax agent engaged in C&NOL’s practice. He says there is no realistic immediate prospect of any of the other current employees becoming registered tax agents. He also asserts (at least implicitly) that there is no prospect of anyone being interested in joining the practice as a registered tax agent and undertaking the supervisory role that would be required to ensure the company’s continuing registration as a tax agent.  

5. There are good reasons to be sceptical of Mr Ristevski’s apprehensions about the likely impact of refusing the stay application. First of all, his apprehensions depend on the proposition that no registered tax agent would realistically be likely to step into the void caused by the termination of his registration, so as to maintain the company’s own tax agent registration. Mr Ristevski’s own evidence frankly conceded that he had made no attempt to retain such a person and that he could not really assess the degree of likelihood of retaining such a person. Even assuming that no such person could be engaged – at least in the immediate future – Mr Ristevski’s claim that his / the company’s income is wholly dependent on his work as a registered tax agent, seems to be difficult to reconcile with his own characterisation of the company’s business as that of an accountancy practice. It seems also not to be precisely congruent with the scope of the information and products addressed in the August 2013 Operating Licence Agreement.  Furthermore the Chan & Naylor advertising material (to which I briefly alluded earlier) depicts Mr Ristevski as having a range of business skills and practice activities that extend into “accounting, finance and property”. However, there is no direct evidence as to when that advertising material was prepared, whether Mr Ristevski was responsible for, or even aware of, its content. And despite the apparent dissonance between his characterisation of the business as an “accountancy practice” and his claim that his sole income was derived from work as a tax agent, he was not required for cross examination for the purpose of the stay application.

6. Notwithstanding my reservations about the justification for the full extent of Mr Ristevski’s apprehensions about the consequences of refusing to stay the Board’s 19 September 2019 decision, I do accept that there is no direct evidence to establish the degree of likelihood that the company will retain its tax agent registration eligibility. I also accept that tax agent services are likely to represent a significant proportion of the business income, and that the ability of the practice to provide tax agent services, either as an adjunct, or as an addition, to its other services, is likely to be a significant influence on its ability to generate income. Having regard to those matters, I also accept that there is a real and significant potential for disadvantage to the current clients, and to some of his employees, as a result of the loss of his tax agent status. That disadvantage to clients is likely to come from the abrupt disruption of their relationship with the practice business, the need to locate and engage a substitute service provider, and the potential cost (both direct and indirect) and delay in any such transition. In the case of employees, there is a significant risk to their ongoing employment (and in the case of the working visa holders, a potential risk to their continued Australian residence eligibility) in the event of a significant decline in the practice income.

   A conditional stay is desirable and appropriate

7. Notwithstanding reservations prompted by concern about the difficulties to which I have alluded (see paragraph 69 above) I consider it desirable to order a conditional stay of the Board’s termination decision. The immediate interests of Mr Ristevski’s practice clients and employees seem to me to favour a continuation of the status quo, and their interests are significant considerations. To a much lesser extent Mr Ristevski’s personal and professional interests also point to the desirability of a stay, to secure the effectiveness of the review proceedings. There is substance in his apprehension about the ability of the C&NOL tax agent service business to survive were he to be deprived of his registration, and there is a similar substance to his apprehension about the ability of the practice to be revived subsequently, in the event that his review application achieve a favourable outcome. In addition, it will be readily apparent from the matters I have addressed in these reasons, that the process of preparation for the effective conduct of the review proceedings is likely to be both time consuming and expensive, and the loss of Mr Ristevski’s ordinary income may, as he apprehends, hamper his ability to conduct the review proceedings with the attention and detail they are likely to require.

8. On the other hand, there are other interests that potentially favour allowing the Board decision to continue to operate. Foremost of those interests is the public interest that underlies the TASA registration and disciplinary regime. It is a significant consideration where, as I have indicated, the currently available material raises real questions about (at least) Mr Ristevski’s compliance with the Code obligation in TASA s 30-10(2), at least in relation to his own taxation affairs and those of his associated entities. Where such questions arise, and especially where the Board’s findings extend into other matters involving the quality of services provided to clients (as they do in the present matter) both clients, employees and relevant business associates, have an interest in knowing that they have arisen, and have been answered adversely by a responsible regulating authority, such as the Board.

9. Taking into account the matters I have addressed, and the reasons summarised in the immediately preceding paragraphs, I will order that the Board’s 19 September 2019 termination decision be stayed. That stay will operate subject to any further order. It will also be subject to conditions requiring disclosure to clients, employees and Chan & Naylor Australia Pty Ltd, and conditions requiring reporting to the Board. Those required disclosures are set out in Schedule 2 of these reasons for decision.

   Further conduct of the proceedings

10. Five things may commend themselves to the parties after reading these reasons, and giving further consideration to the material that is both currently, and reasonably likely to be, available. Those things are:-

    (a)the desirability of clarifying the precise nature, extent, materiality of, and reasons for the various taxation lodgement defaults and debts that have occurred.

    (b)the precise basis for each of the various dishonesty findings underlying the September 2019 termination decision, and the comparative significance of those findings.

    (c)the desirability of further clarification of the precise basis for the matters intended to be relied on as breaches of the Code obligation in TASA s 30-10(7) & 30-10(9).

    (d)the desirability of the parties discussing, and attempting to agree upon, the most appropriate and efficient procedure for addressing those various matters.

    (e)the steps that can be taken to ensure that the substantive review proceedings can be fixed for hearing at the earliest practicable time.

11. Having alluded to those matters, I propose to convene a directions hearing, at which the timing and content of the further stages of the review proceedings will be determined. The parties should attempt to agree upon a mutually convenient date (within 14 days from the publication of these reasons) for that directions hearing to be held, and notify the Tribunal accordingly. Failing agreement between the parties, that directions hearing will be held, in person, on the 10^th business day after the publication of these reasons.

    Schedule 2

    1The fact of the Applicant’s 6 September 2016 disqualification under s 126A of the Superannuation Industry (Supervision) Act 1993 (Cth).

    2The fact that the basis of the disqualification was that he had been found not to be a fit and proper person to be a trustee, or responsible officer of a corporation that was a trustee, of a superannuation entity.

    3That the substantial reasons for the 6 September 2016 disqualification, included:-

    (a)the non lodgement, or delayed lodgement, of tax returns for tax years from 2011 to 2015, of various corporate entities, trusts funds and partnership with which he was personally and professionally associated, and

    (b)a finding that he had breached the independence standards required of a superannuation fund auditor, by undertaking audits of funds for which he also acted as a tax agent.

    4The fact of the Tax Practitioners Board 19 September 2019 decision to terminate his registration as a tax agent with effect from 1 November 2019.

    5The fact that the substantial reasons for the 19 September 2019 decision included findings that:-

    (a)he was not a fit and proper person to act as a tax agent, partly because of tax return lodgement defaults for tax years from 2011 to 2017,

    (b)he had failed to make appropriate disclosures to the Tax Practitioners Board, in connection with the renewal and maintenance of his tax agent registration, in 2016, 2017, 2018 and 2019,

    (c)he had been disqualified in September 2016 under s 126A of the Superannuation Industry (Supervision) Act 1993 (Cth), and

    (d)he had not provided competent tax agent service to seven clients.

    6The fact that, in March 2019, he had been put on notice of the proposed termination of his registration, and had made detailed written representations to the Tax Practitioners Board, opposing the proposed termination, on 5 April 2019, 14 May 2019 and 6 September 2019.

    7The fact that the Tax Practitioners Board made its termination decision after being provided with his April, May and September 2019 written representations.

    8The fact that on 28 October 2019 he lodged an application with the Administrative Appeals Tribunal to review, and stay the operation of, the 19 September 2019 termination decision.

    9The fact that the review application has not been determined.

    10The terms of the stay ordered by the Administrative Appeals Tribunal on 3 December 2019.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated: 3 December 2019

Date(s) of hearing:	14 November 2019
Counsel for the Applicant:	Mr R Glasson
Solicitors for the Applicant:	Mr J Hidayat, Piper Alderman
Counsel for the Respondent:	Ms C Burnett
Solicitors for the Respondent:	Ms L Chen, Tax Practitioners Board