Tribunal refuses stay order for terminated tax agent
A tax agent who was terminated by the Tax Practitioners Board, partly due to the failures relating to her role as an SMSF trustee, has had her application for a stay order refused.
The applicant in CFMZ and Tax Practitioners Board (Taxation) [2020] AATA 2955 sought a review by the Administrative Appeals Tribunal of a decision of the Tax Practitioners Board to terminate her tax agent registration.
She applied for a stay of the board’s decision to permit her to continue to operate as a registered tax agent pending the hearing of the application for review.
The breaches which led the board to make its registration cancellation included the failure to lodge tax returns by the due date, the failure to meet obligations relating to her role as a trustee of a superannuation fund, and failure to deal with the taxation affairs of the fund in accordance with her legal obligations.
The applicant’s explanation in relation to her breaches relates primarily to personal factors such as the stress of ongoing litigation, which exacerbated existing underlying health issues.
The tribunal noted that the board had appeared to have taken into account the applicant’s personal circumstances.
“On the material currently before the tribunal and the submissions of the respondent, it is evident that the board did consider the applicant’s health issues and the effects of this in reaching its decision to cancel her registration. Whether the board afforded appropriate weight to this issue is a matter for the tribunal to consider at the hearing,” said AAT deputy president John Pascoe.
The tribunal stated that it was very important for the public to have confidence in the proper administration of taxation laws in Australia and that the public can be satisfied that those who have the status of a registered tax agent are fulfilling their obligations in a manner which is accepted by both the regulator, in this instance the board, and also in this case the ATO commissioner himself.
“It is relevant in this context that the Commissioner of Taxation determined that the applicant did not meet the requirements to be a trustee or director of a corporate trust of a superannuation entity and disqualified the applicant from acting in this role. The public interest would require such actions to be considered very seriously,” it stated.
“I note that the applicant claimed that the public interest was satisfied by her not advertising her services, that her practice is small and that she does not receive client referrals from the board’s website. This argument, however, ignores the fact the board has an obligation to take appropriate action to ensure the integrity of the tax system and to be seen to be proactive in doing so.”
The tribunal stated that the weight of the material which is yet to be tested would seem to weigh against the prospect of the applicant being successful, and decided not to grant a stay of the board’s decision.
Miranda Brownlee
Miranda Brownlee is the deputy editor of SMSF Adviser, which is the leading source of news, strategy and educational content for professionals working in the SMSF sector.
Since joining the team in 2014, Miranda has been responsible for breaking some of the biggest superannuation stories in Australia, and has reported extensively on technical strategy and legislative updates.
Miranda also has broad business and financial services reporting experience, having written for titles including Investor Daily, ifa and Accountants Daily.
