Shmuel and Tax Practitioners Board - [2019] AATA 2168

Shmuel and Tax Practitioners Board [2019] AATA 2168 (23 July 2019)
Division:TAXATION & COMMERCIAL DIVISION
File Number: 2018/5535
Re:Immanuel Shmuel
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:23 July 2019
Place:Melbourne

The decision under review is affirmed.
.....[sgd]...................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Applicant’s registration as tax agent cancelled – failure to comply with personal tax obligations – failure to disclose bankruptcy – failure to respond to Tax Practitioner Board enquiries - fit and proper person – professional code of conduct – consideration of personal circumstances - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Tax Agent Services Act 2009
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Carter and Tax Practitioners Board (Taxation) [2017] AATA 528
Comino and Tax Agents Board of NSW [2009] AATA 766
Dadwal and Tax Practitioners Board [2018] AATA 2878
Delis and Tax Practitioners Board [2015] AATA 820
Kolya and Tax Practitioners Board [2011] AATA 804
Peterson and Tax Practitioners Board [2018] AATA 93
Re Stephen Tien-Ping Su and Tax Agents Board, South Australia [1982] 82 ATC 4284 Toohey and Tax Agents Board of Victoria [2009] AATA 603
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
Date: 23 July 2019
INTRODUCTION

This is a review of a decision made by the respondent on 16 August 2018 to terminate the applicant’s tax agent registration in accordance with section 40-5(1)(b) of the Tax Agent Services Act 2009 (the Act) and to restrict the applicant from re-applying for registration for a period of 12 months.
The respondent made its decision based on a finding that the applicant was not a fit and proper person as required under section 20-5(1)(a) of the Act.
The respondent notified the applicant of its decision by letter dated 7 September 2018.
The applicant made application for a review of the decision before this Tribunal on 24 September 2018 in accordance with section 70-10 of the Act.
The issue before the Tribunal is whether the decision made by the respondent to:
(a)terminate the applicant’s registration as a tax agent on the basis that the applicant was not a fit and proper person for the purpose of section 20-5(1)(a) of the Act; and
(b)restrict the applicant from reapplying for registration for a period of 12 months,
is the correct or preferable decision.
A hearing in this matter was conducted on 9 July 2019. The respondent was represented by Ms Mia Clarebrough of counsel and the applicant was self-represented.
LEGISLATIVE CONTEXT
The object of the Act as set out in section 2-5 is to:
ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):
(a) establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and
(b) introducing a Code of Professional Conduct for registered tax agents, BAS agents and tax…

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: [2019] AATA 2168
Decision Date: 23 July 2019

CaseChat Overview and Summary

The applicant, Mr Shmuel, sought judicial review of a decision by the Tax Practitioners Board (TPB) to cancel his registration as a tax agent. The TPB's decision was based on Mr Shmuel's failure to comply with his personal tax obligations, his failure to disclose his bankruptcy to the TPB, and his failure to respond to enquiries made by the TPB. The core of the dispute concerned whether Mr Shmuel was a fit and proper person to remain registered as a tax agent, considering these failures and his personal circumstances. The matter was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the TPB's decision to cancel Mr Shmuel's registration was the correct or preferable decision. This involved assessing whether Mr Shmuel met the ongoing registration requirements under the *Tax Agent Services Act 2009* (Cth), specifically the requirement to be a fit and proper person. The Tribunal also had to consider the weight to be given to Mr Shmuel's personal circumstances in its assessment of his fitness and propriety.

In its reasoning, the Tribunal affirmed the TPB's decision, finding that Mr Shmuel's conduct demonstrated a significant lack of regard for his professional obligations and the requirements of the Act. The Tribunal emphasised that compliance with personal tax obligations and transparency with the TPB are fundamental to maintaining registration as a tax agent. While acknowledging Mr Shmuel's personal circumstances, the Tribunal concluded that these did not mitigate the seriousness of his failures to the extent that he could still be considered a fit and proper person. The Tribunal applied the principles of good character, honesty, and integrity as essential attributes for a registered tax agent.

Orders