Tax Agent Services Act 2009

Overview

The Tax Agent Services Act 2009 (Cth) was enacted to address the need for a national regulatory framework for tax agents and Business Activity Statement (BAS) agents, ensuring that these professionals operate with integrity and competency, thereby supporting public trust and confidence in the tax system. The Act was passed by the Australian Parliament and received Royal Assent on 26 March 2009, with most provisions coming into effect on 1 March 2010. Its primary objective, as outlined in section 2-5, is to maintain high standards of professional and ethical conduct among tax agents and BAS agents by establishing a registration and regulatory system managed by the Tax Practitioners Board. This includes setting out a Code of Professional Conduct and imposing sanctions for non-compliance, thus safeguarding the integrity of the tax profession and the tax system. The Act provides for the registration of tax agents and BAS agents, outlines the conditions under which registration can be granted or terminated, and details the penalties for various breaches, including providing unregistered tax services and employing disqualified entities without approval. The establishment and functions of the Tax Practitioners Board, which administers the Act, are also detailed, along with provisions for administrative review, injunctions, and the confidentiality of taxpayer information. The Act aims to ensure that tax agent services are provided in accordance with appropriate standards, enhancing the reliability and accountability of the tax profession.

Scope and Application

The Tax Agent Services Act 2009 (TASA) is a Commonwealth statute aimed at regulating the provision of tax agent services and Business Activity Statements (BAS) services within Australia. It applies to individuals, partnerships, and companies that wish to provide such services for a fee or engage in other conduct connected with providing these services. The Act is administered by the Tax Practitioners Board (TPB), which is responsible for the registration of tax agents and BAS agents, enforcement of the Code of Professional Conduct, and imposing sanctions for breaches of the Act. The Act extends to every external Territory of Australia, and its provisions apply uniformly across the Commonwealth. The Act commenced on 26 March 2009, with certain parts and sections commencing on later dates as specified in the legislation. The TPB has the general administration of this Act. Individuals, partnerships, and companies must meet specific eligibility criteria, including being a fit and proper person and maintaining professional indemnity insurance, to be registered. The Act imposes civil penalties for various prohibited conducts, such as providing tax agent services without registration, making false or misleading statements, and employing deregistered entities. The Act also provides for the TPB to investigate breaches and apply to the Federal Court for pecuniary penalties. Certain exclusions and exemptions apply, particularly regarding the status of trustees and partners in the context of their professional conduct. Subordinate instruments may further extend or restrict the application of the Act by prescribing transitional and other matters.

Key Provisions

• The Tax Agent Services Act 2009 is structured into several key parts, each addressing different aspects of tax agent services. Firstly, Part 2 focuses on the registration process. To be eligible for registration as a registered tax agent or BAS agent, an individual must be at least 18 years old and be deemed a fit and proper person by the Tax Practitioners Board. They must also meet certain qualifications and experience requirements set by the regulations and maintain professional indemnity insurance. Partnerships and companies must also meet specific criteria, including the fitness and propriety of their directors or partners, the absence of recent convictions involving serious taxation offences, fraud, or dishonesty, and the maintenance of professional indemnity insurance. The application for registration must be in the approved form and accompanied by the required documents and fees. The Board has the authority to grant or reject the application within four months, and if granted, the registration will last for at least one year, with conditions that may be varied or terminated based on certain events.
• Following registration, registered tax agents and BAS agents are subject to the Code of Professional Conduct outlined in Part 3. This Code mandates that agents act with honesty and integrity, comply with taxation laws, ensure that tax agent services are provided competently, and maintain professional indemnity insurance. It also requires agents to manage conflicts of interest, maintain client confidentiality, and advise clients of their rights and obligations under taxation laws. Additionally, agents must not knowingly obstruct the proper administration of taxation laws, nor employ disqualified entities without prior Board approval. Failure to comply with the Code can result in administrative sanctions such as written cautions, orders, suspension, or termination of registration.
• Part 4 details the circumstances under which registration may be terminated. This includes events such as criminal convictions, bankruptcy, breaches of the Code of Professional Conduct, or failure to meet the tax practitioner registration requirements. The Board must notify the agent in writing of its decision to terminate registration, along with the reasons and the effective date of termination, which must be at least 28 days after the notice. The Board may also impose a period during which the agent cannot apply for re-registration.
• Part 5 of the Act introduces civil penalties for various contraventions. Unregistered entities providing tax agent services for a fee or advertising such services are subject to penalties. Other civil penalties include making false or misleading statements, employing deregistered entities, or signing declarations prepared by unregistered entities. The Federal Court can order the payment of pecuniary penalties for these contraventions, with different penalties for individuals and body corporates. Partnerships are treated in a specific manner, where each partner can be held liable for the penalty unless they can prove non-involvement in the contravention.
• The Tax Practitioners Board, established under Part 6, has the authority to investigate applications for registration and conduct that may breach the Act. The Board can request documents, require witnesses to appear, and retain documents for investigation purposes. Its functions include administering the registration system, imposing sanctions, and publishing relevant information. The Board must also prepare an annual report and maintain a public register of registered tax agents and BAS agents.
• Lastly, Part 7 outlines miscellaneous provisions, including the Board’s ability to apply for injunctions, the process for administrative review of Board decisions, and the treatment of trustees and partnerships under the Act. It also includes provisions on the disclosure of official information, legal professional privilege, and delegation of powers by the Board. Breaches of these provisions can result in significant penalties, including imprisonment for recording or disclosing official information without proper authorization.

Legal classification tags

Area of Law

Taxation Law

Administrative Law

Instrument

Act

Concepts

Definitions & Interpretation

Commencement Provisions

Licensing & Registration

Civil Penalty Provisions

Enforcement Powers

Rights & Protections

Delegations & Subordinate Legislation

Administrative Review