White and Tax Practitioners Board (Practice and procedure)
[2025] ARTA 603
•14 May 2025
White and Tax Practitioners Board (Practice and procedure) [2025] ARTA 603 (14 May 2025)
Applicant: Peter White
Respondent: Tax Practitioners Board
Tribunal Number: 2025/3406
Applicant:Albus Advisory Pty Limited
Respondent: Tax Practitioners Board
Tribunal Number: 2025/3414
Tribunal:Senior Member R Olding
Place:Brisbane
Date:14 May 2025
Decision:The Tribunal refuses the applications for stays of the decisions under review.
.......................[Sgnd]...........................
Senior Member Olding
Catchwords
PRACTICE AND PROCEDURE – STAY APPLICATIONS – where applicants sought stays of decisions cancelling tax agent registrations – where applicants asserting privilege in associated civil penalty proceedings – whether potential prejudice from applicants giving evidence in stay applications sufficient basis for granting interim stays of decisions under review pending the hearing of evidence in the associated proceedings – no sufficient basis in evidence or prospective evidence for conclusion that stays are desirable for securing the effectiveness of the reviews – stays refused
Legislation
Administrative Review Tribunal Act 2024 (Cth), s 32(2)
Cases
Birdseye v Tax Practitioners Board [2020] FCA 1235
Ransley v Commissioner of Taxation [2016] FCA 778
Statement of Reasons
WHAT ARE THESE REASONS ABOUT?
These reasons concern the applicants’ applications for stays of decisions of the Tax Practitioners Board (TPB) terminating the tax agent registrations of the first applicant, Mr White, and the second applicant, Albus Advisory Pty Limited, a company owned and controlled by Mr White, in each case with a five-year prohibition on re-applying for registration.
The applicants sought orders staying the decisions until the determination of the applications for review. The TPB opposed the granting of those, or even interim stays, until the hearing of the stay applications (which the applicants sought to delay for reasons indicated below).
PROCEDURAL HISTORY
The relevant sequence of procedural events may be summarised as follows:
Date
Event/document
11 April 2025
Decisions under review (cancellation decisions) communicated to applicants.
2 May 2025
Applications for review of decisions under review filed.
2 May 2025
Applications for stays filed.
5 May 2025
Applicants seek urgent directions hearing.
8 May 2025
Tribunal seeks TPB’s response to stays.
8 May 2025
TPB advises that it opposes the stays, but since the decisions were due to come into effect on 10 May 2025, would not enforce the decision until a directions hearing is held.
9 May 2025
Directions hearing listed for 14 May 2025.
14 May 2025
Hearing held.
It is not uncommon, depending on the circumstances, for respondents to stay applications to consent to an interim stay for a short period if the stay application is to be brought on for hearing expeditiously. However, the applicants submitted that the stay applications should not be heard until after the hearing of civil penalty proceedings in the Federal Court in which the applicants may assert their right to privilege in respect of evidence relevant to the review proceedings. On this basis, the applicants sought interim stays pending the hearing of the stay applications. In any case, consistent with correspondence copied to the applicants before the hearing, the TPB opposed any stays being granted, including interim stays.
At the hearing on 14 May 2025, I heard submissions by both parties, stood the matter down to consider the submissions, then returned and gave my decisions refusing the stays. I gave the parties the option to remain in the hearing room while I gave oral reasons, or await written reasons which I indicated would be provided early this week. The parties opted for the latter. These are those reasons.
BACKGROUND
The TPB made the cancellation decisions mainly on the basis of a conclusion that Mr White is not a fit and proper person to hold a tax agent registration. That conclusion arose predominantly out of views formed by the TPB in relation to Mr White’s activities in relation to two trusts, and the alleged taxation consequences of those activities, allegations relating to promotion of tax avoidance schemes and failure to comply with taxation obligations by their due date. The TPB’s findings, which the TPB’s counsel, Ms Ensor, characterised as Mr White’s personal involvement in receipt of secret commissions and the promotion of tax schemes, are of a serious nature.
I was told that Mr White is contesting proceedings in the Federal Court relating to associated promoter penalties and has thus far asserted his right to privilege against exposure to civil penalties in those proceedings. The applicants’ counsel, Mr Josifoski, indicated that Mr White may decide to give evidence in those proceedings that would have the effect of waiving privilege, but no decision to do so had been made. I queried whether such a decision, apparently a strategic litigation decision, might be made earlier, thus potentially allowing the stay applications to be brought on for hearing earlier than August 2025, but it seemed that was not feasible or attractive to the applicants.
The applicants emphasise, and I accept, that the TPB made its decisions predominantly on the basis of, as yet, untested allegations or conclusions reached by officers of the Australian Taxation Office (ATO). The TPB took the view that the evidence supporting those conclusions was compelling. However, the allegations are just that: unproven allegations, most of which are contested by the applicants or, as they have indicated, intend to be once the ATO issues assessments or determines objections lodged by the applicants. To the extent that the TPB’s reasons reference large outstanding assessments, Mr Josifoski advised that these related to alternative assessments where the amounts assessed under the primary assessments have been paid. Interest charges are also contested in judicial review proceedings.
STATUTORY FRAMEWORK
The Tribunal’s power to order a stay of the decisions derives from s 32(2) of the Administrative Review Tribunal Act 2024 (Cth).
Under that provision, the discretion to grant a stay is conditioned upon the Tribunal forming a view that it is desirable to do so for the purpose of ensuring the effectiveness of the relevant review.
There is no burden of proof on either party but, as discussed below, the Tribunal, in order for its discretion to grant a stay to be enlivened, must have a basis for forming an opinion that it is desirable for the stay to be granted for the stated purpose.
THE PRIVILEGE ISSUE
Mr Josifoski submitted that, the applicants having asserted privilege in associated court proceedings, the appropriate course for the Tribunal is to stay the decisions pending the hearing of evidence in the court proceedings. However, it is not at all clear, as the submission appeared to suggest, that staying the operation of a decision under review because privilege has been or is to be claimed in associated criminal or civil penalty proceedings constitutes the “normal” or “standard” approach, especially in a regulatory context where considerations of the public interest in the performance of the regulator’s function arise.
I accept that the existence of, for example, criminal proceedings may and often will provide a basis for staying a proceeding in the Tribunal; for example, a taxation review may be stayed pending the outcome of related criminal proceedings. The same may be said of civil penalty proceedings.
However, it is one thing to stay proceedings for review. It is another to stay the operation of a decision under review. The decision of Jagot J in Ransley v Commissioner of Taxation [2016] FCA 778, on which the applicants primarily relied, and the authorities collated in that decision by her Honour, were concerned with the staying of proceedings, not with staying the operation of a decision under review.
As a matter of principle, and speaking generally rather than by reference to the particular circumstances of this case, such an approach would leave a risk of a person who constitutes a high risk to the public being permitted to continue to provide regulated services for an extended period pending other proceedings. That would be contrary to the protective objects of the tax agent services legislation (or other regulatory laws) and an unlikely foundation for a principle of general application as the applicants seemed to submit.
Additionally, as already indicated, this is not a case where the applicants seek a short interim stay on the basis that the substantive stay application will be brought on for determination expeditiously. The applicants want the decisions stayed until after the hearing of the Federal Court proceedings which are some months away. The operative period of the stays sought would be considerably longer than a common interim stay pending determination of a substantive stay application.
OTHER CONSIDERATIONS
Decisions of the former Administrative Appeals Tribunal and the Federal Court, particularly the decision of Logan J in Birdseye v Tax Practitioners Board [2020] FCA 1235, make it clear that it is appropriate to take into account a number of factors in determining whether a stay should be granted, provided a checklist approach is not taken and every relevant consideration is taken into account. Additionally, I remind myself that the discretion to stay a decision under review is only enlivened if I form a view that it is desirable to do so for the purpose of ensuring the effectiveness of the reviews of the cancellation decisions.
As already indicated, the primary factor to which the applicants point is the potential prejudice to the applicants’ right to assert privilege in the related court proceedings and their ability to make their cases in the Tribunal. That could be a powerful argument for staying the review, but for the reasons I have already indicated, less so for staying the operation of the decisions under review. To determine whether the decisions under review should be stayed requires a broader consideration of all factors relevant to whether it is desirable to do so.
I turn now to consider other factors identified in the authorities as relevant to the power to grant a stay.
The first is the prospects of the applicants succeeding in the review. There is no evidence before me or indication of potential evidence that would enable me to form a view about prospects other than various submissions made on behalf of the applicants to the TPB and to the Tribunal. These were largely directed towards emphasising that the applicants contest the allegations and, to the extent that the TPB relied on matters relating to the applicants’ tax affairs, have either commenced proceedings, filed objections, or noted, in the case of allegations about GST liabilities, that assessments against which objections could be lodged have not yet issued. In those circumstances, I am unable to form a view that the applicants have reasonable prospects of success that would assist in determining whether it is desirable for the decisions to be stayed.
A second factor is the consequences for the applicants if the stay is not granted. It is self-evident that, to whatever extent the applicants are currently providing tax agent services that they are not otherwise permitted to provide unless registered as tax agents, there will be adverse financial consequences for the applicants if the decisions are not stayed. However, Mr White also holds a practising certificate as a solicitor. I was advised that a lawyer with a practising certificate is permitted to provide tax advice and, I assume, tax advocacy services, but not lodge returns on behalf of clients. There is no evidence to which I was directed upon inquiry which indicates the types or extent of services provided by the applicants. If, for example, the applicants only provide tax advice services or provide only limited services for which a lawyer with a practising certificate is nevertheless required to be a registered tax agent, it may be that the impact of refusal of the stays would be limited.
If Mr White is able to provide tax services, there would still be disruption, especially for the corporate applicant, but with some adjustments Mr White would not be denied an opportunity to make a living as a lawyer including by providing tax advice. On the evidence before the Tribunal, I am not able to determine whether Mr White currently provides any services that he would not be permitted to provide without tax agent registration. The applicants’ counsel was unable to shed any light on this.
The upshot of this is that I am unable to conclude that the extent of any adverse consequences for the applicants supports the formation of the requisite desirability opinion for a favourable exercise of the discretion to grant a stay.
A third factor relates to the public interest. This cuts both ways. There is a public interest in protecting the public from tax agent services being provided by a person who would be, if the TPB’s conclusions were to be accepted, not a fit and proper person to provide such services.
There is also an interest in avoiding disruption to clients who may be required to obtain services elsewhere. Again, it is difficult to make any meaningful assessment of this aspect. As already noted, the allegations largely relate to issues arising out of activities associated with two trusts. They do not relate, for example, to services provided to a range of clients. However, I do not have any evidence or indication of how many clients the applicants provide services to.
A fourth factor is the consequences for the ability of the TPB to carry out its functions. I do not see this factor as pointing strongly against granting a stay. The TPB through its actions has demonstrated it is prepared to take firm action where it considers it necessary to do so. The granting of an interim stay, even for a more extended period than commonly occurs, would not detract from the deterrent effect of that regulatory action.
A fifth factor is whether refusal of the stay would render the reviews nugatory. Again, it is not clear to what extent the business of the applicants would be affected having regard to Mr White’s apparent ability to provide tax advisory services while he maintains a practising certificate as a solicitor. If Mr White is able to maintain professional relationships with key clients, it is unlikely the reviews would be rendered entirely nugatory.
I have also considered the conditions upon which stays might be granted as suggested by the applicants. The relevance of a condition that the applicants do not take on new clients is unclear when I have no picture of the nature of the applicants’ business: whether they have a small number of longstanding clients or a regular addition of new clients. The other suggested condition, requiring the applicants’ taxation compliance to be kept up to date, has obvious attraction but requires the applicants to do no more than they are required by law to do in any case.
In the Birdseye case, Logan J stated:
. . . that an applicant for a stay is in no way required to demonstrate that he, she, or it, as the case may be, must succeed upon a review on the merits of the decision. At most, all that one must show is that there is a basis in the material before the Tribunal for forming the opinion that it is “desirable”, in order to preserve the effectiveness of the review, to grant a stay . . .
24. Nonetheless, it is, obviously, in the interests of an applicant to be able to point to something in the material before the Tribunal which engenders the requisite opinion as to desirability. That might be found in what was already before the primary decision maker whose decision is under review. It might be found not in factual material before that decision maker, but rather, in the approach to the construction of the statute empowering the making of the decision concerned. Thus, it may be that there is, even aside from any factual controversy, an arguable proposition of law. It may be each of those. The foundation may also be in additional material which was not before the primary decision maker but has been introduced, or at least can be shown to be reasonably in prospect of being introduced, having regard to the particular stage of the proceedings.
24. It, truly, is neither necessary, nor desirable, to set metes and bounds as to what may engender appropriately the requisite desirability opinion other than to observe that, as with any administrative decision, there must be some material before the Tribunal which is reasonably capable of engendering the requisite opinion.[1]
(Emphasis added.)
[1] [2020] FCA 1235, [23]-[25].
In this case, having regard to the matters highlighted in the discussion above, there is, in my view, insufficient material before the Tribunal which could form a basis on which I could reach the requisite desirability opinion. Particularly having regard to the lack of evidence or even indication of the extent of any adverse impact on the applicants, but not confining myself to that consideration, I am not persuaded that there is a foundation upon which such an opinion could properly be formed on the material to which my attention has been drawn that is before, or reasonably in prospect of being before, the Tribunal.
CONCLUSION
It follows that I must refuse the applications for stays.
Date of hearing:
Counsel for the Applicants:
14 May 2025
K Josifoski
Solicitors for the Applicants:
Counsel for the Respondent:
C.G. Gillis & Co Solicitors
C Ensor
Solicitor for the Respondent: S Pannam, a/g Senior Lawyer, Legal Unit, Tax Practitioners Board
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