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A tax agent who had been banned for the maximum period has had his request for a stay order appeal rejected by the Federal Court.
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Federal Court knocks back tax agent’s appeal
10 September 2020
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The Federal Court has dismissed an appeal by tax agent Nicholas Birdseye to review the Administrative Appeals Tribunal’s decision not to grant a stay of his registration termination.
Mr Birdseye had his registration cancelled by the Tax Practitioners Board for the maximum five-year period after the regulator found that he had failed to comply with his personal tax obligations, including failing to pay tax debts for three of his related entities totalling over $250,000.
The Adelaide tax agent was also found by the TPB to have allegedly facilitated an unsubstantiated R&D tax offset claim of $341,648 for a company he was a director of and a 10 per cent minority shareholder.
The TPB also alleged that Mr Birdseye and his company, Claim IT SA Pty Ltd, had wrongly claimed deductions for clients regarding unsubstantiated work-related expenses over a number of years.
Further, the TPB found that Mr Birdseye had demonstrated unprofessional and uncooperative behaviour in correspondence with ATO officers.
Details of this correspondence was brought to light at the tribunal hearing, which detailed an email from Mr Birdseye to an ATO officer, saying, “I CONgratulate (sic) you on you (sic) new business model to f**k me over. Don’t pay refunds to clients and audit the lot…
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“… I hope you get cancer, have a heart attack and have a really bad family life along with chris jordan (sic).”
The tribunal subsequently chose not to grant a stay after it found that Mr Birdseye did not have reasonable prospects in overturning his termination, and because he had failed to comply with conditions set out in previous interim stays.
In rejecting Mr Birdseye’s appeal to overturn the AAT’s refusal to grant a stay on his termination, the Federal Court found that the tribunal had acted within its right to form a decision.
“In the end, the Tribunal made an evaluative decision as to whether or not to form the requisite opinion,” said Justice Logan of the Federal Court.
“The consequences — and they were plainly appreciated to be extremely adverse — were not ignored; they were weighed up. The Tribunal just was not able, for reasons which were expressed in a detailed and readily comprehensible way, to form the requisite opinion.
“It made an assessment as to prospects which it was entitled to make. It took other considerations of the kind I have mentioned into account and just made a decision thereon in good faith. There the matter must rest.”
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