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Practitioners have raised concerns that Section 10 of the code changes could be used to restrict free speech on the tax system and ATO.
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Section 10 could ‘stifle public comment on tax system’, warns tax expert
25 November 2024
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The release of the draft guidance from the TPB has raised concerns that sub-paragraph 10(b)(ii) of the Tax Agent Services (Code of Professional Conduct) Determination 2024 may be used to control public comment about the tax system.
The TPB released six draft information sheets for consultation last month in relation to the determination.
The guidance explains the TPB’s views on sub-paragraph 10(b)(ii) which states that tax practitioners must not engage in any conduct that they know, or ought reasonably to know, will undermine public trust and confidence in the integrity of the tax system.
In a submission to the consultation, educator and tax expert John Jeffreys has urged the TPB to clarify what it considers constitutes “conduct that undermines public trust and confidence in the integrity of the tax system”.
Jeffreys noted that the TPB’s draft guidance specifically mentions that “considered feedback or submissions, which may include criticism, on public consultation documents that is done professionally is not considered conduct in breach of paragraph 10(b) of the determination”.
Due to the above statement being in the draft guidance, it is clear that the TPB considers public statements about the tax system have the potential to breach paragraph 10(b), Jeffreys said.
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“If this were not the case, the ‘public consultation document’ would not have been singled out,’ he said.
“Further, if ‘unprofessional’ comments are made in relation to such a document, it must be concluded that such statements are a breach of section 10.”
Jeffreys said he has already heard from several sources that tax practitioners are concerned that section 10 will be used as a way “to control public comment about the tax system, and particularly, the ATO”.
“Tax practitioners, generally, have many concerns about the efficiency of the ATO and its systems,” he said.
“Furthermore, the complexity and inefficiency of some of Australia’s tax laws are well documented. Tax practitioners are the people most suited to make informed comments about these matters.”
Jeffreys warned that there must not be any restrictions placed on tax practitioners to freely express their views about the tax system in any manner.
“This should extend to situations where some might consider the comments to be ‘unprofessional’ or even outrageous.
“The government, through the agency of the TPB, must not clamp down on free speech by tax practitioners.”
Jeffreys said the TPB needs to make it abundantly clear that public comments of any type about the tax system and related entities will never breach the Code. There may be breaches of other laws through public comments, but the provisions of section 10 should not be a law that hinders free speech in any manner whatsoever.
“The TPB should expand, by way of further case studies, its views as to what it considers to be undermining the tax system,” he said.
These case studies should include examples of tax practitioners making adverse public comments about the efficiency of the tax system, he said.
“It should include public comments that are not confined to public consultation documents. This includes comments in the media, social media, presentations to conferences, technical papers and so forth,” he stated.
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