The AAT has decided to replace the Tax Practitioner Board’s decision to terminate the tax agent registration of an applicant with a written caution and a specific education course requirement (among other things) after taking into account the history of the applicant’s personal and health problems.
The AAT heard the applicant’s small tax practice in a non-metropolitan area experienced difficulties concerning SMSFs which comprised a small portion (around 1%) of the practice’s work. For the 2011, 2012 and 2013 tax years, the applicant had lodged SMSF returns that incorrectly reported the auditor name (ie the previous auditor’s name had been carried forward) and/or falsely reported the completion of audits prior to lodgment. The AAT also heard statements by the applicant made to the Board between September 2013 and March 2014 concerning the status of the returns and attempts to rectify the situation which were incorrect.
The Board decided to terminate the applicant’s registration on the basis that the applicant ceased to meet the requirement of being a fit and proper person and that the applicant be prohibited from applying from registration for 3 years.
The AAT noted the applicant experienced difficulties in trying to secure a replacement auditor when the original auditor passed away. Although noting the dates were not clear, the AAT also noted that through this period, the applicant suffered “psychological and personal pressures from 2011 that led to a marriage breakdown and relationship difficulties with children”. It also noted the applicant “suffered from depression and an alcohol misuse problem”. Overall, the AAT held that in the circumstances, it was not appropriate to find that on an ongoing basis the applicant was not a fit and proper person to be registered as a tax agent if appropriate limits are placed on that registration.
Accordingly, the AAT held that in place of termination, the applicant should be given a written caution, in addition to other requirements.
(Re SHTX and Tax Practitioners Board  AATA 451, AAT, Ref No: 2014/4225, 30 June 2016.)
Extract from AAT Decision
- The decision under review is varied. In place of the termination of the Applicant’s registration as a tax agent:
(a) pursuant to s 30-15 of the TAS Act the Applicant be given a written caution;
(b) pursuant to s 30-20(1) of the TAS Act, the Applicant’s registration be restricted such that unless and until remedial education in courses approved by the Respondent concerning taxation and other compliance obligations of SMSF are undertaken and satisfactorily completed, the Applicant is not to be involved in preparing and lodging SMF returns and statements other than for a SMSF of which the Applicant is a member; and
(c) pursuant to s 30-20(1)(a) of the TAS Act before 30 June 2017 the Applicant enrol in and satisfactorily complete ‘Ethics, Tax Agent Services Act (TASA) 2009 AND THE Code of Professional Conduct’ offered by The Tax Institute or equivalent course approved by the Respondent.
- The parties are directed to consult with each other and then advise the Tribunal within 14 days as to any requests for or opposition to using a pseudonym in the public reporting of this decision.
F D O’Loughlin, Senior Member