SRBP and Tax Practitioners Board - [2016] AATA 456

SRBP and Tax Practitioners Board [2016] AATA 456 (30 June 2016)

Division

TAXATION & COMMERCIAL DIVISION

File Number

2014/5366

Re

SRBP

APPLICANT

And

Tax Practitioners Board

RESPONDENT

DECISION

Tribunal
F D O'Loughlin, Senior Member

Date 30 June 2016

Place Melbourne
In place of the cancellation of the Applicant’s registration as a tax agent the Tribunal directs that:
(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 for three years she is not to offer any form of fee from refund service to her clients and is not to be involved in any activity as part of her tax agent practice that includes the receipt of money belong to her clients;
(c)pursuant to s 30-20(1)(a) of the TAS Act, before 30 June 2017 the Applicant is to undertake and satisfactorily complete remedial education in a course approved by the Respondent concerning trust accounting that includes the nature and content of trustees duties and obligations concerning trust moneys and the course 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;
(d)pursuant to s 30-20(1) of the TAS Act, for the next three years the Applicant is to provide to the Respondent details of any and all bank accounts she operates and access to her tax agents portal so as to allow the Respondent to be able to monitor the Applicant’s compliance with (b) above.

.............[sgd].............................................
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
Legislation
Legal Profession Uniform Law Application Act 2014 (Vic) ss 299, 120
Tax Agent Services Act 2009 (Cth) ss 30-20(1)(a), 30-20(1), 60-125(2), 30-30, 40-25, 30-10(1), 30-10(3), 30-10(7), 30-15, 60-95, 60-125, 30-25
Cases
Chamberlain v Australian Capital Territory Law Society (1993) 118 ALR 54
Harris and Tax Practitioners Board [2014] AATA 430
In the Matter of the Legal Practitioners Act 1898 to 1936 and In the Matter of Clem Alexander Parbury [1989] NSWCA 132
Legal Practitioners Conduct Board v Nicholson [2006] SASC 21
Legal Services Commissioner v Mirabella [2014] VCAT 339
Prothonotary v Del Castillo [2001] NSWCA 75 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122
SRBP and Tax Practitioners Board [2015] AATA 292
SRBP and Tax Practitioners Board [2015] AATA 302
REASONS FOR DECISION
F D O'Loughlin, Senior Member
30 June 2016

The Applicant seeks the Tribunal’s review of the Respondent’s decisions:
(a)pursuant to ss 60-125(2) and 30-30 of the TAS Act,[1] to cancel her Tax Agent registration for breaches of the Code;[2] and
(b)pursuant to s 40-25 of the TAS Act, to impose a two year period in which she will not be eligible to apply for a registration.
[1]Tax Agent Services Act 2009 (Cth).
[2]TAS Act,…

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: [2016] AATA 456
Decision Date: 30 June 2016

CaseChat Overview and Summary

This decision of the Administrative Appeals Tribunal concerned an application by SRBP (the Applicant) to review a decision by the Tax Practitioners Board (the Respondent). The dispute arose from the Respondent's decision to cancel the Applicant's registration as a tax agent. The Applicant sought to have this decision set aside or varied.

The Tribunal was required to determine the appropriate sanction to impose on the Applicant, considering the Respondent's decision to cancel her registration. This involved balancing the need to protect the public interest and maintain professional standards within the tax agent profession against the Applicant's personal circumstances and the availability of graduated sanctions. The Tribunal also had to consider whether the Applicant's personal and health issues, which contributed to her predicament, had sufficiently improved to allow for a less severe outcome.

The Tribunal reasoned that a regulatory regime's public interest function can be satisfied if the decision-maker is confident that the offender has recovered. In this instance, the Tribunal acknowledged the Applicant's significant health and personal issues, noting that sufferers should be afforded sensible moderation of sanctions. It also recognised the existence of a graduated system of sanctions designed to be appropriate and not ruinous to livelihoods. Given that the Applicant was no longer as afflicted by her issues, had no evidence of practice difficulties beyond dealing with ATO refunds, and that protective orders could be made to prevent recurrence, the Tribunal found that a fine balance could be struck.

Consequently, the Tribunal varied the Respondent's decision. Instead of cancelling the Applicant's registration, the Tribunal directed that she be given a written caution, her registration be restricted for three years to prevent her from offering refund services or receiving client money, she undertake remedial education in trust accounting and ethics, and provide details of her bank accounts and portal access for monitoring by the Respondent for three years. The Tribunal also noted and appreciated the pro bono legal assistance provided to the Applicant.

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

Protecting the public interest by maintaining standards requires recognition that the public interest function of a regulatory regime can be regarded as served if the decision maker is satisfied that the offender has recovered.[16] [16]Legal Practitioners Conduct Board v Nicholson [2006] SASC 21, 30 per Doyle CJ, with whom Perry J at 40 and White J at 41 agreed, and the authorities there referred to.DECISION In circumstances where:(a)the current system has a protective function;(b)significant health and personal issues are not to be ignored and sufferers are to be afforded sensible moderation of otherwise applicable sanctions;(c)a graduated system of sanction is available, and intended to be applied, so that the sanction applied can be both appropriate in the circumstances and not a ruinous imposition affecting tax agents’ livelihoods;(d)there is no evidence that the Applicant has difficulties in her practice beyond dealing with ATO refunds;(e)the Applicant is no longer as afflicted by her personal and health issues as she was at the relevant time; and(f)registration as a tax agent can be allowed with limits on the scope of particular activities and other protective styled orders can be made so as to prevent recurrence of the problems that led to the present application and thereby achieve the objectives of the new system and maintain standards,on a fine balance recognising the severe difficulties that have contributed to the Applicant’s predicament, an appropriate sanction that addresses these matters, protects the public interest and standards of tax agents and reflects an appropriate balance, is to vary the decision under review as set out below. In place of the cancellation of the Applicant’s registration as a tax agent the Tribunal directs that:(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 for three years she is not to offer any form of fee from refund service to her clients and is not to be involved in any activity as part of her tax agent practice that includes the receipt of money belonging to her clients; (c)pursuant to s 30-20(1)(a) of the TAS Act, before 30 June 2017 the Applicant is to undertake and satisfactorily complete remedial education in a course approved by the Respondent concerning trust accounting that includes the nature and content of trustees duties and obligations concerning trust moneys and the course 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; and(d)pursuant to s 30-20(1) of the TAS Act, for the next three years the Applicant is to provide to the Respondent details of any and all bank accounts she operates and access to her tax agents portal so as to allow the Respondent to be able to monitor the Applicant’s compliance with (b) above. As noted at the end of the hearing in this matter, it is now a matter of public record that the Lawyers (both Counsel and Solicitors) acting for the Applicant in this matter have done so on a pro bono basis.[17] Apart from the direct benefit the Applicant has derived from that assistance, it is appropriate to record the Tribunal’s appreciation for the efforts of the Applicant’s lawyers in a matter that probably transpired to be more involved than expected when they committed to the assistance they have provided. The Tribunal has been a significant beneficiary of the pro bono work done. It is also appropriate to record the Respondent’s sentiment in joining in the appreciation expressed to the Applicant’s lawyers.[17]SRBP and Tax Practitioners Board [2015] AATA 292; SRBP and Tax Practitioners Board [2015] AATA 302.

Ratio Decidendi

Legal Principle Established

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Division	TAXATION & COMMERCIAL DIVISION
File Number	2014/5366
Re	SRBP
APPLICANT
And	Tax Practitioners Board
RESPONDENT

Tribunal	F D O'Loughlin, Senior Member
Date	30 June 2016
Place	Melbourne