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A submission to the TPB says the 30-day time frame needs to be extended to at least three months amid heavy workloads and client obligations.
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Dob-in window ‘nearly impossible’ for practitioners, joint bodies warn
05 June 2024
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The time frame to report significant breaches of the code of professional conduct should be tripled in length because the current 30-day period will be “nearly impossible” to fulfil, joint bodies urge.
A submission by eight professional bodies – including CA ANZ, CPA Australia, IPA, the ICB and the Tax Institute – warned the current reporting requirements had essentially created a “daily obligation” to track breaches by themselves or others.
“Practically speaking, reporting will be extremely challenging due to the rolling 30-day period, rendering it nearly impossible for practitioners to keep track of and fulfil their reporting obligations in what will essentially be a daily obligation to consider any possible breaches by themselves or other practitioners within the preceding 29 days,” the submission in response to the TPB’s draft guidance read.
The changes to the Tax Agent Services Act, set to apply to significant breaches that occur on or after 1 July, require practitioners to notify the TPB and professional associations within 30 days of the day on which they have, or ought to have, reasonable grounds to believe they have breached the code, or that another practitioner has breached the code.
Depending on the number of offences arising from a practitioner’s failure to report a breach, penalties can result in criminal prosecution and conviction, including jail time for up to one year.
The joint bodies said there was a “serious need” for legislative amendments to improve the operation of breach reporting obligations, flagging their intention to lobby the government to extend the 30-day period to a time frame of “at least” three months.
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Practitioners did not have the time to gather evidence – including personal experience, publicly available information, client complaints and professional advice – on top of managing existing workloads and professional practice obligations, client commitments and CPE, the submission said.
“To address this, it would be in our view more reasonable if the timeframe were extended to at least three months,” it said.
“This will give practitioners a more realistic period of time to collect sufficient evidence, ensuring that reportable breaches are appropriately substantiated. This approach would likely minimise unnecessary reporting of breaches that are not significant.”
While the TPB has no jurisdiction to change the law, the joint bodies called on it to issue more guidance on determining the 30-day start date, which was currently “subjective and difficult to accurately measure”.
“We suggest the TPB should provide practical guidance on when the practitioner is taken to have formed those reasonable grounds and therefore when the 30-day period commences,” it said.
Practitioners also needed more guidance on determining what constituted significant breaches of the code beyond being advised to “seek legal advice”.
Consulting with lawyers would likely take more than 30 days to complete and result in additional costs, hurting smaller tax practices in particular.
“This is not a simple process that can be easily undertaken by a practitioner, if at all,” the submission said.
“It is not clear how the TPB expects practitioners to develop the understanding of criminal laws that will be necessary within a short period.”
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