Robert Trevaskis and Tax Practitioners Board - [2013] AATA 301

[2013] AATA 301

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0773

Re

Robert Trevaskis

APPLICANT

And

Tax Practitioners Board

RESPONDENT

DECISION

Tribunal
Deputy President P E Hack SC

Date 14 May 2013

Place Brisbane (heard in Maroochydore)
The decision under review is affirmed.
......................[Sgd]..................................................
Deputy President P E Hack SC
CATCHWORDS
TAX AGENT – REGISTRATION – termination of registration – discretion to terminate registration enlivened upon conviction – serious tax offence – offence involving dishonesty – sentenced to term of imprisonment – disqualification from managing corporations – lack of contrition – conduct of applicant warrants termination of registration – decision affirmed
LEGISLATION
Tax Agent Services Act 2009 (Cth), ss 20-5(1), 20-15, 20-45, 40-5
CASES
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974
Su v Tax Agents’ Board, South Australia (1982) 61 FLR 1
REASONS FOR DECISION
Deputy President P E Hack SC

The applicant, Mr Robert Trevaskis, was a registered tax agent for many years until 16 January 2013. On that day the respondent, the Tax Practitioners Board (the Board), terminated his registration.
Mr Trevaskis seeks a review of the Board’s decision to terminate his registration.
Registration of tax agents is now dealt with by the Tax Agent Services Act 2009 (Cth) (the Act). Those who seek to provide tax agent services for a fee breach the provisions of that Act unless registered under the Act. The Board has the task of administering the system of registration of tax agents including that of determining whether persons seeking registration satisfy the requirements for registration.
By virtue of s 20-5(1) of the Act an individual, aged 18 years or more, is eligible for registration if the Board is satisfied:
(a)that the individual is “a fit and proper person”, and
(b)that the individual satisfies the prescribed requirements relating to qualifications and experience.
The criteria for determining whether an individual is a fit and proper person are set out in s 20-15 of the Act in these terms:
20-15 Criteria for determining whether an individual is a fit and proper person
In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:
(a) whether the individual is of good fame, integrity and character; and
(b) without limiting paragraph (a):
(i) whether an event described in section 20-45 has occurred during the previous 5 years; and
(ii) whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and
(iii) whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years.
The Act, by s 20-45, specifies certain events that “may affect … continued registration as a registered tax agent”. They include:
·being convicted of a serious taxation offence, as that term is defined in s 90‑1 of the Act,
·being convicted of an offence involving fraud or dishonesty, and
·being sentenced to a term of imprisonment.
Where an event affecting registration occurs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 301
Decision Date

CaseChat Overview and Summary

In the case of Robert Trevaskis v Tax Practitioners Board, the respondent sought to have the applicant's registration as a tax agent terminated. The respondent's decision was based on the applicant's criminal conviction for obtaining a financial advantage by deception, his failure to notify the respondent of the relevant events, and the disqualification from managing a corporation imposed by the Australian Securities and Investments Commission. The applicant challenged the respondent’s decision, and the case was heard in the Federal Court. The central legal issue was whether the respondent had correctly exercised its discretion to terminate the applicant’s registration as a tax agent. The court needed to determine whether the respondent had correctly applied the statutory provisions and whether the decision was within the scope of the statutory authority.

The court found that the respondent had correctly exercised its discretion in terminating the applicant’s registration. The court held that the statutory provisions provided the respondent with a broad discretion in such matters and that the decision was within the scope of the statutory authority. The court noted that the applicant’s criminal conviction and the disqualification from managing a corporation were relevant considerations that supported the respondent’s decision. The court also held that the applicant’s failure to notify the respondent of the relevant events was a further consideration that supported the respondent’s decision. The court rejected the applicant’s argument that the respondent had failed to take into account relevant considerations and had given undue weight to irrelevant considerations.

The court concluded that the respondent had correctly exercised its discretion in terminating the applicant’s registration. The court dismissed the applicant’s appeal and upheld the respondent’s decision. The court made no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Part 4 of the Act deals with termination of registration as a tax agent. The circumstances under which the registration as a tax agent of an individual may be terminated are set out in s 40-5 of the Act as follows:40-5 Termination of registration—individuals (1) If you are a registered tax agent or BAS agent and an individual, the Board may terminate your registration if: (a) an event affecting your continued registration, as described in section 20-45, occurs; or (b) you cease to meet one of the tax practitioner registration requirements; or (c) you breach a condition of your registration. Where the Board terminates registration it may also determine a period of not more than five years during which the person may not apply for registration.[2][2] See s 40-25 There is no dispute about the events that prompted the Board’s decision to cancel the registration of Mr Trevaskis as a tax agent. On 13 February 2012 he was convicted on his own plea of two offences against s 134.2(1) of the Criminal Code Act 1995 (Cth), offences shortly described as obtaining a financial advantage by deception. He was sentenced to a term of imprisonment of 6 months but the sentencing magistrate ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that he be released forthwith on a recognizance to be of good behaviour for a period of 12 months. Mr Trevaskis was ordered to pay reparation[3] in the sum of $60,428. The two charges arose from Mr Trevaskis’ conduct in obtaining refunds of GST input tax credits as a consequence of lodging false business activity statements for two companies of which he was a director between November 2005 and December 2007[4]. As he accepted in the course of his evidence, the falsity arose from Mr Trevaskis overstating the amounts of creditable acquisitions in order to inflate the entitlement to input tax credits. He accepted as well that the amount of $60,428 was the amount wrongfully received as a consequence of his deception. [3] See s 21B, Crimes Act[4]In the case of Global Solar Solutions Pty Ltd, false monthly BAS were lodged between November 2005 and December 2007. The range for the other company, Southern Star Forest Products Pty Ltd, was between September 2006 and November 2007. Mr Trevaskis did not notify the Board of these matters. Additionally, the Board relied on, and continues to rely upon, conduct of Mr Trevaskis that led to the Australian Securities and Investments Commission, on 22 June 2011, disqualifying him from managing a corporation for a period of two years. That disqualification was made under s 206F of the Corporations Act 2001 (Cth). Mr Trevaskis had been the director of five corporations that had gone into liquidation in circumstances where the liquidators reported that each corporation was likely to be unable to pay unsecured creditors more than 50 cents in the dollar. In fact, in each case, the liquidator reported the likelihood of no dividend for unsecured creditors. In the circumstance of the present case it is material to note some further details in relation to those companies. Robert J. Trevaskis Pty Ltd was wound up on 19 March 2009. It had a deficiency of $30,708.00. Its sole creditor was the Deputy Commissioner of Taxation in respect of unpaid income tax and interest for the 2003 and 2004 income years. Mr Trevaskis was the sole director. Astor International Pty Ltd was also wound up in March 2009. Its sole creditor was the Deputy Commissioner of Taxation in relation to a running balance account deficit of $149,332.85 for BAS amounts. That company had not lodged its 2007 and 2008 income tax returns. Mr Trevaskis had been a director from 1 December 2003 and the sole director from 23 July 2006. Southern Star Forest Products Pty Ltd was also wound up in March 2009 with a total deficiency of $44,702.83. Mr Trevaskis had been a director from 25 August 2005 to 1 November 2008.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0773
Re	Robert Trevaskis
APPLICANT
And	Tax Practitioners Board
RESPONDENT

Tribunal	Deputy President P E Hack SC
Date	14 May 2013
Place	Brisbane (heard in Maroochydore)