An applicant has been unsuccessful before the Federal Court in a matter concerning the decision of the Tax Practitioners Board to terminate his tax agent registration following his separation from his former employer.

By letter dated 10 October 2014, the Board notified the applicant that it had decided to terminate his registration as a tax agent with effect from 14 November 2014. The decision was based upon it becoming satisfied that the applicant had breached s30-10(1) of the Tax Agent Services Act 2009 (TASA) [the ‘Code of Conduct’] by not acting honestly and with integrity, towards his former employer, around the time he left that firm, in circumstances described by Pembroke J, in NSW Supreme Court, in Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350. The applicant considered that his behaviour in relation to his separation from his former employer was not behaviour of a kind that the Board should, or even can, concern itself with. In conclusion, the AAT ordered that the matter be listed for directions at the earliest opportunity (see Re Kishore and Tax Practitioners Board [2016] AATA 764).

The applicant then appealed to the Federal Court. On 28 October 2016, a notice of appeal under s44 of the Administrative Appeals Tribunal Act 1975 was filed stating as follows, and as amended, by leave, given in the course of the hearing: “The Applicant appeals from the decision of the Administrative Appeals Tribunal in the Taxation and Commercial Division, as contained in paragraphs 24 and/or 26 of the Administrative Appeals Tribunal’s judgment published 30 September 2016 (‘the Judgment’).

By notice filed on 4 November 2016, the Board objected to the competency of the appeal on the ground that the decision referred to in para [26] of the reasons of the AAT did not constitute the effective decision or determination of the application for review that was before the AAT and, therefore, no appeal laid from that decision under s 44 of the Administrative Appeals Tribunal Act. The Board submitted that having answered “yes” to the question of whether the “conduct” was capable of breaching s 30-10(1), the AAT had next to determine whether the “conduct” did breach that section. Accordingly, it submitted the AAT proceeding from which the “appeal” purported to be brought remained ongoing. It added that there had been no hearing by the AAT of the merits of the substantive application before it.

The Federal Court dismissed the applicant’s appeal as “incompetent”. It said in the present case, it was “plain that the Tribunal has not yet completed its review of the decision of the Tax Practitioners Board to terminate the [applicant’s] registration as a tax agent”. It followed that it held that an appeal under s44(1) of the Administrative Appeals Tribunal Act was not presently before it. It said once the AAT has completed its review of the decision under review, and affirmed, varied or set aside that decision, then an appeal may be brought under s44 on a question of law by a party to the proceeding before the AAT and that appeal may include such questions of law as remain material.

(Kishore v Tax Practitioners Board [2016] FCA 1328, Federal Court, Robertson J, 10 November 2016.)

[LTN 219, 11/11/16]