An applicant has been unsuccessful before the AAT in a matter concerning the Tax Practitioners Board’s decision to terminate his tax agent registration.
The applicant became a registered tax agent on 7 March 2011 while working for his then employer (a firm which provided accounting and tax agent services). In July 2012, the applicant and 2 of his colleagues registered a new company and resigned from the firm and started working for their new company, which was registered as a tax agent the following month.
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) by not acting honestly and with integrity towards his former employer around the time he left that firm in the 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. He said the Code of Professional Conduct contained in Part 3 of the TASA did not cover conduct undertaken with respect to an employer/employee relationship and that the Board exceeded its power.
The AAT dealt with a number “threshold questions” formulated by the parties and these questions were answered adversely to the applicant. Essentially, the AAT rejected the applicant’s primary contention, which sought to restrict the reach of s 30-10(1) to “the provision of tax agent services” only. In this regard, it was argued that where the impugned conduct was not itself the provision of a tax agent service, there can be no breach of the requirement to act honestly and with integrity. The AAT was of the view that the Code of Professional Conduct applies in all aspects of a person’s conduct as a registered tax agent, whether that conduct be personal conduct as a registered tax agent, or professional conduct as a registered tax agent. In conclusion, the AAT ordered that the matter be listed for directions at the earliest opportunity.
(Re Kishore and Tax Practitioners Board [2016] AATA 764, AAT, File No: 2014/5796, Frost DP, 30 September 2016.)
The Applicant has appealed to the Federal Court now.
[Austli – [2016] AATA 764] [LTN 191, 4/10/16] [LTN 209, 28/10/16]