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The Administrative Review Tribunal has upheld a decision by the TPB to reject a former tax agent’s request for registration as a tax agent.
ART affirms TPB decision on registration of tax agent
16 April 2025
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9 minute read
In a decision last week, the Administrative Review Tribunal of Australia (ART) has affirmed a decision by the Tax Practitioners Board on an application for a tax agent registration.
The applicant in the case was previously registered with the TPB as a tax agent from April 2014. This registration was subject to a business activity statement (BAS) services condition, which prevented him from preparing and lodging income tax returns for clients.
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In June 2021, the TPB terminated his tax agent registration following an investigation and imposed a non-application period from the termination date. The termination decision took effect from 19 August 2021.
The investigation by the TPB had found that the registered agent had prepared and lodged income tax returns under his registration number, which was outside the scope the BAS services condition applicable to his registration.
According to the TPB, during the period from April 2014 to August 2021, he had lodged 589 income tax returns under his registration number.
In March 2021, the TPB had sent a letter to the registered agent demanding that he stop preparing and lodging income tax returns. However, in the period from 3 March 2021 until 19 August 2021, he lodged a further 60 income tax returns.
The board found that the tax agent was not a fit and proper person within the terms of the Tax Agent Services Act, and therefore not eligible for registration as a tax agent.
The tax agent lodged an application of review of the 2021 termination decision. A request for a stay order was granted by the ART in August 2021 with conditions.
In February 2022, the ART affirmed the 2021 termination decision by the TPB and the termination of his registration as a tax agent took effect from March 2022.
The 12 month non-registration period imposed under the 2021 termination decision expired on 26 March 2023. Two days later he lodged a new application for registration as a tax agent.
The tax agent relied on his experience as a tax agent between 2014 and 2023 to demonstrate his relevant experience as part of his application.
This included work he carried out under the supervision and control of a registered tax agent in the period from 14 April 2014 until 30 November 2018.
He also sought to rely on a range of other documentation to support his registration application, including employment documentation from accounting practices he had worked for, and correspondence, including letters of support and extracts of returns he had lodged.
The TPB said he did not meet the experience requirement because he was not able to show with probative evidence that he had undertaken at least 8 years of full-time relevant experience in the last 10 years.
It also stated that the lodgment of income tax returns in breach of the TASA during this period could not be counted as relevant experience.
There was also no evidence that another tax agent had provided supervision and control for the applicant during this period.
The TPB also said the former tax agent was not a fit and proper person for TASA purposes and therefore was not presently eligible for registration as a tax agent.
This was due to the significant breaches made by the applicant of his BAS condition over more than seven years. The TPB noted the tax agent's failure to adequately acknowledge the cease and desist letter.
The ART agreed that the hours spent performing non-compliant tax agent work concerning the preparation and lodgment of income tax returns in breach of the BAS Services condition should not be counted as relevant experience.
"The Tribunal has not been persuaded on the material which is before the Tribunal that [the applicant] can demonstrate on probative evidence to the civil standard of proof that he has accumulated the necessary hours of “relevant experience” he needs to satisfy the experience requirement," it said.
It also concluded that the applicant did not meet the proper person requirement under the TASA.
"I am not satisfied that an appropriate atmosphere of mutual trust has yet been achieved between [the applicant] and the board," Mark Darian-Smith, ART general member, said.
"Based on the Board’s submissions, it remains of the view that [he] still lacks a proper appreciation of his responsibilities as a tax agent operating under the TASA legislative regime."
The ART said that while the applicant had made some progress, there "remains work to be done".
"[The applicant] does not need to like the Board, but he does need to respect the job that the Board and its officers are carrying out in the proper regulation of tax agents and prospective tax agents," it said.
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