SHTX and Tax Practitioners Board [2016] AATA 451 (30 June 2016)
Division
TAXATION & COMMERCIAL DIVISION
File Number
2014/4225
Re
SHTX
APPLICANT
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal F D O'Loughlin, Senior Member
Date 30 June 2016 Place Melbourne
The decision under review is varied. In place of the termination of the Applicant’s registration as a tax agent:
(a)pursuant to s 30-15 of the TAS Act the Applicant be given a written caution;
(b)pursuant to s 30-20(1) of the TAS Act, the Applicant’s registration be restricted such that unless and until remedial education in courses approved by the Respondent concerning taxation and other compliance obligations of SMSF are undertaken and satisfactorily completed, the Applicant is not to be involved in preparing and lodging SMF returns and statements other than for a SMSF of which the Applicant is a member; and
(c)pursuant to s 30-20(1)(a) of the TAS Act before 30 June 2017 the Applicant enrol in and satisfactorily complete ‘Ethics, Tax Agent Services Act (TASA) 2009 AND THE Code of Professional Conduct’ offered by The Tax Institute or equivalent course approved by the Respondent.
The parties are directed to consult with each other and then advise the Tribunal within 14 days as to any requests for or opposition to using a pseudonym in the public reporting of this decision.
...........[sgd]..................................
F D O'Loughlin, Senior Member
TAX AGENTS CODE OF CONDUCT – breach of TASA Code of Professional Conduct – tax agent registration terminated – Applicant experienced personal and health problems – appropriate sanction – comparison with registration and regulation of legal practitioners – Decision under review varied
Legislation
Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1, ss 299, 120
Tax Agent Services Act 2009 (Cth) ss 30-1, 30-10, 30-15, 30-20(1), 30-20(1)(a), 60-125(2), 40-5(1)(b), 70-10, 60-95, 60-125, 60-5, 30-30, 30-20, 30-25Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380Chamberlain v Australian Capital Territory Law Society (1993) 118 ALR 54
Harris and Tax Practitioners Board [2014] AATA 430Hughes and Vale Pty Ltd v State of NSW (No 2) (1955) 93 CLR 127, 156
Legal Practitioners Conduct Board v Nicholson [2006] SASC 21
Legal Services Commissioner v Mirabella [2014] VCAT 339
Prothonotary v Del Castillo [2001] NSWCA 75, 71
Re Fearon and Australian Prudential Regulation Authority (2006) 93 ALD 203
Re George and Australian Securities and Investments Commission [2014] AATA 167
Re Li and Tax Practitioners Board (2014) 141 ALD 201
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, 36
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974, 984Su v Tax Agents’ Board of South Australia (1982) 61 FLR 1, 4 – 5
REASONS FOR DECISION
F D O'Loughlin, Senior Member
30 June 2016
The Applicant is a registered tax agent without apparent cause for any registration concerns until the present matters arose. The Applicant was employed as an accountant from 1979 until 2003 and has been self-employed since 2003. From 2006…
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- AGLC
- SHTX and Tax Practitioners Board [2016] AATA 451
- Case
- [2016] AATA 451
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine the appropriate sanction for the tax agent's breaches of the Code of Professional Conduct, considering the applicant's personal and health issues at the time of the transgressions, and whether termination of registration was a necessary or proportionate response. The Tribunal also had to consider the public interest and the need to maintain standards within the tax agent profession.
The Tribunal reasoned that while maintaining standards and protecting the public interest were paramount, these objectives could be served by a sanction that acknowledged the applicant's recovery from personal and health issues. The Tribunal noted the availability of a graduated system of sanctions, the miniscule nature of the transgressions in relation to the applicant's overall practice, and the applicant's attempts to address the circumstances. Drawing on principles from the regulation of legal practitioners, the Tribunal concluded that the applicant was not permanently unfit to be registered if appropriate limitations were imposed.
Accordingly, the Tribunal varied the decision under review. Instead of terminating the applicant's registration, the Tribunal issued a written caution, restricted the applicant's ability to prepare and lodge SMSF returns and statements (except for their own SMSF) until remedial education was completed, and mandated the satisfactory completion of an ethics course by a specified date. The parties were also directed to consult regarding the use of a pseudonym in public reporting.
Orders
Orders of the court
1. The decision under review is varied. In place of the termination of the Applicant’s registration as a tax agent:
(a) pursuant to s 30-15 of the TAS Act the Applicant be given a written caution;
(b) pursuant to s 30-20(1) of the TAS Act, the Applicant’s registration be restricted such that unless and until remedial education in courses approved by the Respondent concerning taxation and other compliance obligations of SMSF are undertaken and satisfactorily completed, the Applicant is not to be involved in preparing and lodging SMF returns and statements other than for a SMSF of which the Applicant is a member; and
(c) pursuant to s 30-20(1)(a) of the TAS Act before 30 June 2017 the Applicant enrol in and satisfactorily complete ‘Ethics, Tax Agent Services Act (TASA) 2009 AND THE Code of Professional Conduct’ offered by The Tax Institute or equivalent course approved by the Respondent.
2. The parties are directed to consult with each other and then advise the Tribunal within 14 days as to any requests for or opposition to using a pseudonym in the public reporting of this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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