S & T Income Tax Aid Specialists Pty Ltd and Tax Practitioners Board

This matter concerned applications by S & T Income Tax Aid Specialists Pty Ltd and S & M Tax Services Pty Ltd (the Applicants) for a stay of decisions made by the Tax Practitioners Board (the Respondent) to terminate their registrations as tax agents. The Respondent's decisions were based on findings that Mr McGuid, the sole director of both companies, was not a fit and proper person to be a tax agent, and in the case of S & M, that it did not have a sufficient number of registered tax agents to provide services competently. The applications were heard by Senior Member R Cameron of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether to grant a stay of the Respondent's decisions to terminate the Applicants' registrations, pending the substantive review of those decisions. In considering this, the Tribunal was required to assess the prospects of success of the Applicants' appeals, the potential consequences of refusing a stay for the Applicants and their clients, and the public interest considerations. The Tribunal also considered the evidentiary weight to be given to the Applicants' failure to respond to correspondence from the Respondent, and whether such silence constituted an admission by conduct.

The Tribunal reasoned that the Applicants' failure to respond to the Respondent's letters detailing the reviewable decisions, and their failure to provide an affidavit explaining why those decisions were incorrect, could be considered an admission by silence or conduct. While acknowledging it was not bound by strict rules of evidence, the Tribunal found the principles concerning admissions by conduct to be rational and logical, and therefore applicable. The Tribunal concluded that, even accepting the Applicants' arguments, their prospects of success on the substantive review were remote. The Tribunal also noted that the Tax Agent Services Act 2009 (Cth) establishes eligibility criteria for registration, including being a fit and proper person and having appropriate qualifications and experience, and that the Code of Professional Conduct regulates the conduct of registered tax agents, with sanctions including termination of registration for non-compliance.

The Tribunal refused to grant the stay. It found that the consequences of refusing the stay, while significant for the Applicants' employees and approximately 1160 clients, were outweighed by the public interest in maintaining the integrity of the tax agent registration system. The Tribunal considered that the Applicants had not demonstrated a strong likelihood of success on the merits of their review applications.