Watson and Tax Agents' Board of Queensland

[2008] AATA 120

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 120

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5943

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANITA WATSON

Applicant

And TAX AGENTS’ BOARD OF QUEENSLAND

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date15 February 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed................

Deputy President

CATCHWORDS

PROFESSIONS & TRADES – tax agent – registration – fit and proper person – medical condition affecting cognitive function – not a fit and proper person – decision affirmed

Income Tax Assessment Act 1936 (Cth) – ss 251JA, 251BC

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127

Stasos v Tax Agents’ Board (NSW) 90 ATC 4950; (1990) 21 ATR 974

REASONS FOR DECISION

15 February 2008 Deputy President P E Hack SC

1.The applicant, Ms Anita Watson, seeks a review of the decision of the respondent, the Tax Agents’ Board of Queensland, made on 14 November 2007, refusing her application for registration as a tax agent. The parties have given consent to the matter being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). I am satisfied that it is appropriate to do so.

2.Registration as a tax agent is governed by Part VIIA of the Income Tax Assessment Act 1936 (Cth) (the Act). Before it may register an applicant as a tax agent, the Board is required by s 251JA of the Act to be satisfied that the applicant,

“is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters”.

Section 251BC(1) of the Act sets out circumstances where an applicant is not a fit and proper person. None of those matters are made out here but as the subsection makes clear, it is not an exhaustive prescription.

3.In considering the issue of a fit and proper person it is unwise to attempt to define the matters that may legitimately be considered. Every case must depend upon its own circumstances[1]. As Hill J observed in Stasos v Tax Agents’ Board (NSW)[2],

“the content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation may vary having regard to the office or vocation under consideration".

[1]        Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127 at 157.

[2] 90 ATC 4950 at 4959.

4.In deference to Ms Watson’s medical condition I do not propose to recite much of the background, however it is that background that satisfies me that she is not a fit and proper person. Dr Mohammed Khateeb, a consultant geriatrician and physician, expressed the opinion in May 2007 that Ms Watson lacked the capacity to make a particular decision in relation to her own affairs as a consequence of what Dr Khateeb described as “probably Alzheimer’s disease”. That disease notoriously causes a loss of cognitive function such as memory and language. More recent contact between Dr Khateeb and the Secretary to the Board did not suggest any alteration to the earlier diagnosis.

5.It is self-evidently of critical importance to the work of tax agents that they enjoy full cognitive function. Without that the interests of clients are likely to be significantly compromised. In circumstances where Ms Watson is shown to have cognitive impairment I cannot be satisfied that she is a fit and proper person.

6.I add that I have not found it necessary to decide the issue on the basis relied upon by the Board in making its decision. There is, to my mind, considerable doubt whether Ms Watson has insight in the matter. It seems more likely that her actions, on which the Board based its decision, were the manifestation of her condition. I need not reach any concluded view. 

7.It follows that I would affirm the decision under review.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:
           .....................Signed..............................................
  Jacqueline Woods, Associate

Date of Hearing  Hearing on the papers
Date of Decision  15 February 2008
Applicant  Self represented

Solicitors for the Respondent    Australian Government Solicitor