Dadwal v TPB – Tax agent not a fit and proper person in light of 3 indecent assaults, 15 years on sex offenders register; evasiveness or dishonesty before and after conviction

The AAT has confirmed a Tax Practitioners Board’s decision to terminate a tax agent’s registration because he was not a fit and proper person.

In March 2016 the Board terminated the applicant’s registration as a tax agent as it did not consider he was a “fit and proper person”, as required by s 20-5 of the Tax Agents Services Act 2009. The Board also determined that the applicant would not be able to apply for re-registration for 2 years.

The Board’s decision was based on:

• 3 criminal convictions in March 2016 in the Magistrates Court for indecent assault – the applicant was placed on an 18-month Community Corrections Order;
• the conduct that took place in March 2015 upon which the convictions were based; and
• various non-disclosures and statements to the Board and third parties that the Board contended were false and misleading – these included the failure to disclose immediately to the Board the convictions and misrepresentations about what had transpired in the Magistrates Court and whether he had advised all his clients of the convictions. Some of these matters were not revealed until cross-examination of the applicant at the hearing of this application.

There were 3 indecent assaults, that all occurred in a supermarket, in the space of 20 – 25 minutes six days after returning from India. Mr Dadwal was 39, married and has 2 children. The Tribunal described the assaults as follows [para 14].

1. the 12-year old complainant was a customer in the supermarket shopping with her mother. She said Mr Dadwal pulled her toward him with his left hand, put his arm around her waist, reached down and pinched her bottom. She said she saw him again in the next aisle, and he pinched her again and whispered something to her (she did not know what he had whispered to her);
2. the 17-year old complainant was an employee at the supermarket. She said he told her that she had some dirt on her bottom and asked if she would like a hand to wipe it off, to which she answered, “No, I’ve got it, thanks”. She said he walked past and brushed his hand against her bottom; and
3. the 25-year old complainant was a customer in the supermarket. She said she felt a firm grab on her left bottom cheek by Mr Dadwal and that Mr Dadwal followed her to two other areas in the supermarket.

Mr Dadwal made a late guilty plea, and was sentenced (on 2.3.16) to an 18 month Community Corrections Order (to do 100 hours of unpaid community work and specialised education). He was ordered to continue his counselling. He was not imprisoned because it was his first offence and his risk of reoffending was assessed moderate to low – however the Magistrate made it clear that if he did reoffend, he would be imprisoned. He was also placed on the sex offenders register for 15 years.

Whist the offences were criminal and unsavoury (especially with the 12 year old), they could have been a lot worse, and there is the issue of the degree to which an offence outside your professional duties, ought be relevant to one’s fitness to practice.

There were, however, a good many other matters, going to (amongst other things) his honesty and integrity, which brought him unstuck.

1. He left a practice in 2014, taking clients and staff and was sued by the practice he left (settling that action). [para 8]
2. He was not, initially, forthcoming, to the Police about the 3 incidents, and evasive through out. [para 17 and following]
3. His guilty plea was late and he seemed to lack insight into what was wrong with his conduct. [para 26 & 29]
4. The practice Mr Dadwal left (and which sued him) reported Mr Dadwal’s convictions to the TPB in March 2016 (very soon after the sentencing).
5. Unbeknown to Mr Dadwal, he applied to renew his tax agent’s licence (in April 2016) and made a statutory declaration that there were no matters that had occurred in the last 5 years that might affect his his ‘good fame, integrity and character‘, making no reference to his recent convictions for indecent assault and sentencing.

This was enough for the TPB to decide to terminate Mr Dadwal’s registration as a tax agent (in July 2016). [para 39]

But the evasiveness and lack of insight went on.

1. Mr Dadwal was again misleading or evasive in a disciplinary hearing before CPA Australia. He had his membership cancelled for 4 years, for (amongst other things) ‘the risk to the brand to have a member of CPA Australia on the sex offenders register for 15 years’.
2. He showed lack of insight and failed to make progress in accepting the gravity of what he’d done over 5 separate psychological assessments stretching from November 2015 to July 2017.

In the light of all that, the AAT upheld the Board’s decision, stating that the applicant “lacks ‘good fame, integrity and character’ in the context of a person acting as a registered tax agent”. The AAT said that the non-disclosures and false and misleading statements also demonstrated that the applicant was an individual who “has acted dishonestly in order to serve his own interests and to avoid embarrassment”.

On reading the transcripts and the details in the decision, I can see why the Tribunal upheld the TPB’s decision.

(Dadwal v Tax Practitioners Board [2018] AATA 2878, AAT, File No: 2016/4295, Parker M, 14 August 2018.)

Comprehension questions (answers available)

1. Did the AAT uphold the TPB’s decision to cancel Mr Dadwal’s registration as a tax agent and prevent him reapplying within 2 year.
2. Was Mr Dadwal’s initial problem, 3 indecent assaults, in one half hour visit to a supermarket, resulting in a Community Corrections Order and being placed on the Sex Offenders Register for 15 years?
3. Did Mr Dadwal show insight into what was wrong with his behaviour and make progress in dealing with it?
4. Was that all?