White and Tax Practitioners Board (Practice and procedure) - [2025] ARTA 603

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read White and Tax Practitioners Board (Practice and procedure) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] ARTA 603
Decision Date: 14 May 2025

CaseChat Overview and Summary

The applicants, Mr. White and his associates, applied for interim stays of decisions made by the Tax Practitioners Board (TPB) to cancel their registrations as tax agents. The applicants sought the stays on the basis of potential prejudice to their privilege in associated civil penalty proceedings, which could be compromised if they provided evidence in the stay applications. The case was heard and decided by the Administrative Review Tribunal. The key legal issue before the Tribunal was whether the potential prejudice to the applicants' privilege in the associated civil penalty proceedings was a sufficient basis for granting interim stays of the TPB's decisions pending the hearing of evidence in those proceedings. The Tribunal considered the relevant statutory framework, which allowed it to order a stay of the decisions if it was desirable for the purpose of ensuring the effectiveness of the review. The Tribunal also considered the lack of evidence or indication of the extent of any adverse impact on the applicants, and the broader consequences of staying the decisions.

The Tribunal concluded that there was insufficient material before it to form an opinion that it was desirable to grant the stays for the purpose of ensuring the effectiveness of the reviews. The Tribunal noted that the applicants sought a long-term stay until after the hearing of the Federal Court proceedings, which was some months away. The Tribunal also considered other relevant factors, such as the prospects of the applicants succeeding in the review and the consequences for the applicants if the stay was not granted. However, the Tribunal was unable to form a view that the applicants had reasonable prospects of success that would assist in determining whether it was desirable for the decisions to be stayed. Additionally, the Tribunal noted that the consequences for the applicants if the stay was not granted would depend on the types and extent of services provided by the applicants, which was not evident from the evidence before the Tribunal.

The Tribunal refused the applications for stays, noting that it was not persuaded that there was a foundation upon which such an opinion could properly be formed on the material before, or reasonably in prospect of being before, the Tribunal. The Tribunal also noted that this was not a case where the applicants sought a short interim stay on the basis that the substantive stay application would be brought on for determination expeditiously. The operative period of the stays sought would be considerably longer than a common interim stay pending determination of a substantive stay application. The Tribunal concluded that the applicants had not established a sufficient basis for granting the stays and that it was not desirable to do so for the purpose of ensuring the effectiveness of the reviews.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

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.