Tax Technical previously published an article (in Jan ’20) about a decision, made by County Court, against the Commissioner of Taxation. That Court held that the Commissioner could not recover a taxpayer’s refund, which he alleged was overpaid, by putting the correcting debit in the tax agents ‘RBA’ (which would create a liability, for the tax agent, personally). In January 2021, this Tax Agent, contacted me and said that the previous article was misleading and did him great disservice. I asked him to write, to me, about what was incorrect, which he did – and I’ve reproduced it below. In this, he said he only lodged the refund returns, on his client’s instructions (not off his own bat, to get the refunds). He said that his client got the benefit of the refunds (correctly pointing out that keeping the refunds, for himself, would be criminal, and he protested that he was not subject to any charges or conviction). Further, he said, he not only won, in the County Court, but he survived the Commissioner’s appeal, in the Supreme Court – Court of Appeal, in which the Commissioner withdrew his proceedings, after it ran, but before judgement, agreeing to pay the agent’s costs. Though I’ve not investigated the truth of the matter, beyond reading this agent’s account of events, I have published it a matter of fairness (especially as his version appeared, to me, at least, to be credible). Personally, I doubt the accuracy of the first account, and am happy to retract any adverse inference, against the agent or his firm, and apologise for it. I published the previous article in good faith, and am happy to learn, again, that ‘things are not always as they seem’. I will leave you to absorb the two accounts and make up your own mind.
[This correction is open, to give the agent a full opportunity to put his side of events.]
[Tax Technical – February 2021]
Email received 21 Jan 2021
Dear Mr Morgan,
Please remove or alter the article on your website regarding Commissioner of Taxation V MWB Accountants Pty Ltd as it contains false information and details regarding this case. The facts of the case, regarding the lodgement of BASs that were different to the one provided to the client was never proven by the CoT. These were false allegations made by the CoT in order for the matter to fit in with their Practice Statement for them to be able to raise an administrative overpayment, which was also incorrect. Furthermore, your summary of the case makes it look like those were the facts of the matter which were proven, this was not the case and it is incorrect.
In addition, the CoT appealed the matter, engaged a QC, for the appeal, which ran for 4 days. After the hearing, they withdrew the matter as it was blatantly obvious that they stuffed up and they were going to lose. So as to not have an even higher precedent, they withdrew the appeal. This is not mentioned anywhere in your summary.
… [the Agent requested TT to take down or alter the previous article – then he went on to say] …. It has already caused me significant loss in the way of lost prospects and that, I am sure you will agree, is not ideal.
I have endured and lost enough money defending this matter against the ATO and now that I have been proven right, the last thing I need is [incorrect reporting] about the case and my business!
Michael Burhala CA
I returned Mr Burhala’s email the same day asking him to provide his version of events, which he went to the effort of doing – in the following terms….]
Mr Burhala responded the next day (21st), in the following terms…
Dear Mr Morgan,
Thank you for getting back to me, I really appreciate you taking the time to correct this for me.
- I can appreciate this, I do believe that this stems from the ATO’s summary of this case as I they have been frustrating my family for over 10 years now.
- Yes, even the title is misleading and false! If I did or attempted to do any of those things, would I not be in jail right now? Or at least be defending some sort of criminal charges? As accountants and Tax Agents our punishment would be even higher than normal! Yet, there are no charges or allegations of anything like that against me. More so, the ATO now owe me my costs for both the Appeal and the County Court matter. See attached Order and see attached article for a more realistic summary of the case.
- I will detail which parts are incorrect below:
- The Title! Just because the funds were not physically paid to the client, does not mean the client did not receive the benefit of the funds. The client owed a related company a substantial amount of money. The debt was assigned to MWB and when the refunds were received they were applied towards repaying that debt. Later a dispute between the client and I arose due to [a dispute he had with] my brother in a business deal and that’s when the client went to the ATO and said that he never received those refunds. This is 2 or 3 years after the fact! The ATO then gave the client all those funds and as soon as I won the County Court matter, and the truth came out, the client put that company in liquidation. The company is called [withheld] Pty Ltd if you want to check.
- The first paragraph! There were only 4 BASs that accounted for the 9 payments! The BASs were not different to what was lodged at all. The version of the BAS that the client gave to the ATO as the BAS received from me was the first draft of the BAS that was forwarded to the client. After that, there were changes advised BY THE CLIENT which were then processed by MWB and then a final BAS was forwarded to the client and then lodged. The problem with the payments of the initial amounts arose from the fact that the client was on a payment plan for a large debt to the ATO which meant that he had to pay all BASs by the due date so if the final BAS was not ready by that date, he would pay the amount on the Draft BAS. But copies of all correspondence is held by MWB which shows that the Final BAS lodged was forwarded to the client prior to being lodged. Otherwise, as already stated, I would be in jail by now if this was not the case!
- The second paragraph! The client never received any of the payments, ie they were retained by the agent. Correct technically, but if you leave out the fact that they were applied against a debt the client owed to MWB it makes it look like I stole the funds! Which is a total misrepresentation of the facts!
I am interested in your thoughts as to how we proceed from here John.
THE ATTACHMENTS REFERRED TO in Mr Burhala’s email giving his version of the facts…
- The Victorian Supreme Court – Court of Appeal – 24 Sept 2020 decision in MWB’s favour
- The November 2020 Tax Institute Journal by Mr John Glover (of the Victorian Bar) entitled ‘Tax agents: beware of “administrative overpayments” added to your RBA’