Tramontana and Tax Practitioners Board

[2021] AATA 434

Tramontana and Tax Practitioners Board [2021] AATA 434 (18 January 2021)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):       2020/4726

Re:Jodie Tramontana

APPLICANT

AndTax Practitioners Board

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe
Senior Member B Pola

Date:18 January 2021

Date of written reasons:        24 February 2021

Place:Melbourne

Pursuant to s42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review, on the basis that the Tribunal is satisfied the application has no reasonable prospect of success.

.................................SGD.....................................

Deputy President Bernard J McCabe

CATCHWORDS

INTERLOCUTORY – dismissal application – no reasonable prospect of success – registration of BAS agents – meeting requirements – conferral of award – legislative instrument – dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Tax Agent Services Act 2009 (Cth)

SECONDARY MATERIALS

Tax Agent Services Regulations

REASONS FOR DECISION

24 February 2021

1. The Tribunal provided oral reasons for its decision at the hearing in this matter. The parties have subsequently asked for written reasons for the decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The statement of reasons which follows was distilled from the transcript of the hearing.

2. Ms Tramontana had almost completed a course of study in accounting when she applied for registration as a BAS agent under the Tax Agent Services Act 2009 (Cth) (TASA). The Board initially refused her application as her studies were incomplete. She has now finished her course although she does not formally graduate until April 2021. She is keen to get to work, and her grades reflected in the university transcript suggest she will do a good job. But the Board says she is ineligible for registration until she formally graduates. The Board says that conclusion is inevitable given the language in the relevant rules. The Board has asked the Tribunal to dismiss the application for review pursuant to s 42B(1)(b) of the AAT Act.

3. The power to dismiss under s 42B should not be exercised lightly. But the power is there for a reason: it is wasteful and unkind to persist in a review if the case is, in effect, hopeless. That would be contrary to the objective in s 2A of the AAT Act which contemplates a process of review that is fair, economical, just, informal and quick. In this case, the Board relies on the ground that the applicant has no reasonable prospects of success – that is, she has no reasonable prospect of getting the Tribunal to make a different decision upon review.

4. It will be necessary to discuss the limited evidence that is before us and the law which is applied when the Tribunal is considering whether to make a decision about dismissal under s 42B. If we are unable to say at this stage of the review the applicant has no reasonable prospect of success, the review must be allowed to continue. We note in passing that the review would be unlikely to conclude before April, which is when the applicant formally graduates from her course at a scheduled graduation ceremony. The Board's current objection to registration would presumably lapse. Circumstances would probably overtake us in that event. But that is not relevant to our decision today. If we are in doubt about the applicant’s prospects of success, the applicant will be permitted to continue with the review and proceed to a hearing. We note in passing that if the review proceeds, it is unlikely it would conclude by April. It may be that the applicant will be able to reapply to the Board for registration successfully before the Tribunal has completed its review. Be that as it may.

5. The power to register is found in s 20.25 of TASA; it is vested in the Board. There is no doubt the Tribunal has the power to review decisions of the Board to refuse registration under the section: s 70.10.

6. In making its decision whether to register the applicant as a tax agent, the Board – and the Tribunal upon review – is bound to apply the eligibility criteria referred to in s 20.5. Section 20.5(1)(b) refers to the educational requirements which are detailed in the Regulations for each type of registration.

7. Schedule 2 to the Tax Agent Services Regulations includes, at section 101, a requirement applicable to people seeking registration as BAS agents which states:

   (a)The individual has been awarded at least a Certificate IV Bookkeeping or a Certificate IV Accounting, from:

   (i)a registered training organisation; or

   (ii)an equivalent institution.

   (The section goes on to refer to experience and other requirements which are not in issue here.)

8. The evidence before us – in particular, the academic transcript provided by the University of South Australia – establishes the applicant has completed a course of study in the Bachelor of Accounting course. The transcript records the applicant’s grades in each subject and notes under the heading ‘status’ that it is a ‘completed program’. There is no doubt that a person who has been awarded the Bachelor of Accounting degree would satisfy section 101 of the Regulations.

9. While the applicant has finished her course of study and satisfied all of the requirements, she is yet to graduate from the course. While the transcript is dated 14 October 2020, the University confirmed that the graduation ceremony will not be held until April 2021. That is an inordinately long time between the end of the course and the graduation. The question we must ask is whether, having completed the requirements for the course but not having graduated, the applicant has satisfied the requirement in the Regulations that the applicant has been awarded the credential.

10. The Board says the degree is not awarded until the degree is conferred. There is some confusion about when a degree qualification is awarded because universities might use a variety of terms in these circumstances: they talk of conferring an award or awarding a degree or admitting a person to a qualification. The expression ‘awarded’ in the Regulations is a reference to a formal process by which the educational institution decides to certify that a person has met all the requirements and is thereafter awarded a qualification. It is not the ceremony that is important; it is an executive function which involves the university formally recording the award of the qualification. A perusal of the graduation policy of the University of South Australia suggests the process occurs in that university when the award is conferred either at a ceremony or at a meeting of the council. Neither of those events have occurred.

11. There is no reason to doubt Ms Tramontana will graduate, but the Board says at the moment she is merely eligible for the award. In those circumstances, because the expression ‘awarded’ in regulation 101 is used in the past tense, the Board says Ms Tramontana must wait. It is not open to us to conclude that a completed (but as yet unawarded) Bachelor of Accounting qualification is superior to a diploma which involves a less onerous course of study: the rule says what it says. Of course, it must be remembered the Board did not make this rule – it is a legislative instrument – and it was unlikely that those who made the rule contemplated there would be a six month delay between completing the course of studies and the award of the degree. But the rules are clear.

12. Ms Tramontana argued it is open to the Board to decide if it is satisfied the course of study, she has completed is equivalent. She makes that argument having regard to the note in the regulations which provides:

    The Board may approve a course by an approval process, an accreditation scheme, or by other means.

13. The argument derived from the note as to the power of the Board to make a judgment about a course is misunderstood: it is a power to approve a new course, for sure, but that approval is only available in relation to courses that lead to an award.

14. The applicant says she acted in good faith on the strength of publications and assistance she received. She claims she is being discriminated against because she has a superior qualification. But that is not the problem here: the decision is the product of an unusually slow graduation process at the University of South Australia. If the university were quicker, this wouldn’t be an issue.

15. The outcome though is clear. There are not reasonable prospects of success if the matter went to a hearing. The regulations say what they say.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of

.........................................SGD.............................

Associate

Dated: 24 February 2021

Date(s) of hearing:	18 January 2021
Applicant:	Self-Represented
Respondent:	Self-Represented