Tharanga Pathiranage and Tax Practitioners' Board
[2014] AATA 490
[2014] AATA 490
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1352
Re
Tharanga Pathiranage
APPLICANT
And
Tax Practitioners' Board
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 14 July 2014 Place Melbourne The Tribunal affirms the reviewable decision dated 25 February 2014.
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John Handley, Senior Member
TAX PRACTITIONERS' BOARD – registered tax agent – renewal of registration – whether applicant has completed continuing professional education that meets the Board's requirements – course in Australian taxation law not completed – applicant seeking extension to complete course requirements – power of the Tribunal to extend time – decision to refuse renewal of registration affirmed.
LEGISLATION
Tax Agent Services Act 2009 ss 20.5 and 70.10
Tax Agent Services Regulations 2009 reg 6A and schedule 2
CASES
Taufahema v Minister for Immigration and Citizenship (2010) 183 FCR 515
REASONS FOR DECISION
Mr John Handley, Senior Member
At the conclusion of the hearing on 14 July 2014, I delivered brief oral reasons, affirming the decision under review. The following written statement is offered as the reasons for that decision.
In a letter dated 8 October 2010, the respondent approved the registration of Mr Pathiranage, the applicant, as a tax agent under the Tax Agent Services Act 2009 (the Act).
The letter also notified him that his registration would expire on 1 March 2013 and upon application for renewal of registration, he may need to meet additional eligibility requirements, which were identified as courses in commercial law, Australian taxation law and basic accountancy principles, each of which must be approved by the respondent (T1, pages 24-26).
On 28 February 2013 the applicant made an online application for renewal of registration as a tax agent (T3, pages 37-41).
On 13 May 2013, the respondent notified the applicant that it required proof that he had completed 2 tertiary level units in the subject of Australian taxation law (T6, page 44). At that date and at the date of this review, the applicant had not successfully completed a course in Australian taxation law that is approved by the respondent.
THE LEGISLATION
Section 20.5(1) of the Act provides that a person over the age of 18 years is eligible for registration (including renewal of registration – s 20.20 of the Act) as a tax agent, if the respondent is satisfied, relevantly, that the person meets the requirements prescribed by the regulations (s 20.5(1)(b)).
Regulation 8 of the Tax Agent Services Regulations2009 (the Regulations) provides that for the purposes of section 20.5(1)(b) of the Act, the prescribed requirements are found within Part 2 of Schedule 2 (of the Regulations).
Item 203(b) of Part 2 of Schedule 2 provides that a person applying for registration as a tax agent must have successfully completed a course in Australian taxation law that has been approved by the respondent.
THE APPLICANT’S CIRCUMSTANCES
The applicant said he has attempted, twice, to complete a course in Australian taxation law that has been approved by the respondent, but has been unsuccessful. He has however, continued to practice as a tax agent from 1 March 2013 because the respondent had agreed, on 2 occasions to defer consideration of his renewal application in anticipation that he would successfully complete the requisite course (T8, page 48 and T13, pages 86 – 90).
On 13 February 2014, the respondent decided that it would not permit the applicant any further period of time to meet the minimum course requirements. It invited him to withdraw his application which would entitle him to a refund of application fees. The applicant declined that invitation. On 25 February 2014, the respondent notified the applicant that his application for renewal was rejected because he did not meet the prescribed qualification requirements (T23, pages 151 – 156).
The applicant subsequently lodged an application for review of that decision in this Tribunal and also applied for a stay of the decision. On 24 March 2014, an officer of the respondent notified the Tribunal that it did not oppose the applicant’s request for a stay. Accordingly, at the date of the hearing of this review, the applicant continued to practice as a tax agent. At that date, he had not satisfied the minimum course requirements as prescribed within Schedule 2.
CONCLUSION AND REASONS FOR DECISION
The applicant agreed that he had not satisfied the minimum prescribed course requirements to become eligible for renewal of registration as a tax agent. He sought review of the decision in anticipation that he may be granted a further period of time in order to complete the minimum course requirements. He indicated that he had enrolled in a course which, if successfully completed, would satisfy the requirements. He sought a decision to defer consideration of his renewal application until the end of 2014.
Counsel for the respondent submitted that there was no such power within the Act. It was contended that the only decision capable of review was the decision made by the respondent on 13 February 2014 to reject his application for re-registration.
That submission has merit. Section 70.10 of the Act only empowers the Tribunal, relevantly, to review decisions made under section 20.25(1)(b) that is, eligibility for registration or renewal. Regulation 6A also sets out the decisions that are reviewable by the Tribunal. None of which are relevant to this application.
The only decision capable of review is the decision to refuse to renew the applicant’s registration as a tax agent. In reviewing that decision, the critical issue is whether the applicant met the minimum course requirements. The applicant has not successfully completed a course in Australian taxation law that has been approved by the respondent and he therefore, does not meet the combined provisions of section 20.5(1)(b) and item 203(b) of Part 2 of Schedule 2 of the Regulations.
I acknowledge that the applicant’s personal circumstances in 2013 were extreme. He was confronted with having to apply himself to undertake a course of study when his wife was seriously ill, he alone was responsible for care of an infant child and he attempted to work in salaried employment.
If there was a power within the Act to extend a period of time to qualify for registration, the applicant’s circumstances might compel such a conclusion. But there is no such power and as Jacobsen J decided in Taufahema v Minister for Immigration and Citizenship and Another (2010) 183 FCR 515 at [20], the function of the Tribunal is:
…to address the material before it and make a decision on that material. It is not consistent with this principle to say that the Tribunal is required to wait for circumstances to change so that it can consider material that is not, and indeed in this case could not, be before the Tribunal.
DECISION
The decision under review is affirmed.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ............................[sgd]............................
Associate
Dated 17 July 2014
Date(s) of hearing 14 July 2014 Applicant In person Advocate for the Respondent Mr J. Matheson Solicitors for the Respondent Ms J. Somodio, Tax Practitioners’ Board
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