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The Administrative Appeals Tribunal has upheld a decision to terminate the registration of a tax agent after he failed to investigate unauthorised payments allegedly made from client accounts.
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AAT upholds agent’s registration termination
01 March 2022
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The decision, Plaskitt and Tax Practitioners Board [2022] AATA 267, involved a review of a decision by the Tax Practitioners Board (TPB) to terminate the registration of Richard Geoffrey Plaskitt as a tax agent as the TPB was not satisfied that he was a fit and proper person.
The TPB decided that Mr Plaskitt would be prohibited from applying for registration for a period of five years. Mr Plaskitt asked the Administrative Appeals Tribunal of Australia (AAT) to review the TPB’s decision.
The decision by the TPB followed adverse findings that were made after an investigation into the partnership of which Mr Plaskitt was the sole supervising agent. His wife, Mrs Plaskitt, was the other partner of the partnership.
The partnership provided various bookkeeping, accounting, and taxation services to its clients.
On 20 May 2019, the TPB commenced an investigation into the conduct of the partnership and, in its notice about the investigation, foreshadowed that any adverse findings would have consequences for him.
The TPB’s investigation into the partnership had its origins in a complaint that was made to the board by Dr Robyn Cosford in November 2018.
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Dr Cosford is a medical practitioner, who at the relevant times, had interests in, amongst other things, a business known as the Northern Beaches Care Centre (Centre) and in an SMSF, the R Cosford Superannuation Fund.
Dr Cosford stated that she contracted the applicant’s wife as her bookkeeper in 2008 and Mr Plaskitt as her accountant in 2009. Mrs Plaskitt also became Dr Cosford’s practice manager sometime later. Dr Cosford relied upon the partnership and Mr Plaskitt to assist her in managing her accounting and taxation affairs and those of the Centre and the fund.
From January 2016 to March 2018, Mr Plaskitt was the tax agent responsible for representing Dr Cosford’s interests and the interests of the entities associated with comprising as the Centre and the SMSF.
The main issue to be determined was whether Mr Plaskitt’s registration as a tax agent should be terminated as he no longer satisfied the criteria of a fit and proper person, which is a requirement that must be maintained in order for a person to continue to be registered. The other and related issue was whether Mr Plaskitt should be subject to a period during which he is prohibited from applying for registration for a period of five years.
The TPB’s claim that Mr Plaskitt was not a fit and proper person was informed by a series of allegations concerning Mr Plaskitt’s conduct as a partner.
The allegations relied on were that Mr Plaskitt as a partner and as the sole supervising agent for the partnership allowed the partnership to misappropriate funds belonging to Dr Cosford, the SMSF and the Northern Beaches Care Centre’s business management account.
These funds were allegedly used to make unauthorised payments to the partnership’s accounts with the ATO, payments for personal and business expenses of the partnership and Mr and Mrs Plaskitt, and loans to the partnership, Mr and Mrs Plaskitt and to others.
It is also alleged that the funds were used to make payments that were represented as loan repayments in the bank accounts of the SMSF and the Centre without reimbursing Dr Cosford for the money belonging to the Centre or the SMSF.
The TPB claim also relied on allegations that Mr Plaskitt allowed the partnership to breach its taxation obligations by failing to lodge the 2018 income tax return by its due date, failing to lodge six business activity statements (BAS) for each of the quarters ending between 31 March 2018 and 30 June 2019 by their due dates and failing to pay its taxation debts in its Integrated Client Account (ICA) and its superannuation guarantee charge.
There were also allegations submitted that Mr Plaskitt allowed the partnership to breach the obligation to have in place adequate arrangements for the management of conflicts of interests that might arise in relation to its activities as a registered tax agent, BAS agent or tax (financial adviser).
It was also alleged by the TPB that Mr Plaskitt allowed the partnership to breach the requirement to act competently by failing to lodge 23 tax returns for Dr Cosford or entities related to her by their due dates, to lodge 53 BAS statements for Dr Cosford or entities related to her by their dates and failing to ensure Dr Cosford’s company Care Centre of Australia paid its tax debts when they fell due.
Allegedly, Mr Plaskitt also failed to ensure that the Cosford Family Trust complied with payment arrangements between 21 April 2017 and 6 March 2018 in order to pay its ICA debt.
The claim by the TPB also alleges that Mr Plaskitt allowed the partnership to breach a requirement to respond to requests and directions from the board in a timely, responsible and reasonable manner which concerned the failure to provide supporting evidence for a request for an extension of time to respond to the board’s letter of 20 May 2019 and a failure to provide a response to the letter of 20 May 2019 by the requested date.
Dr Cosford gave evidence that she had not authorised Mrs and Mr Plaskitt to make loans from the Centre or the SMSF, either to themselves or to family members from the fund. In particular, Dr Cosford was shown entries in documents that brought together payments made out of the SMSF’s bank account that were styled “loan repayment G Springer”.
Dr Cosford said she had never made a loan or authorised any loan repayments to be made to or from G Springer and that she had never entered into a loan agreement with anyone by that name. G Springer was known to Dr Cosford as one of Mrs Plaskitt’s children. She said the same about transactions that appeared in the Centre’s and SMSF’s bank accounts that included in their description loan repayments involving A Ahola. A Ahola was Mrs Plaskitt’s daughter.
Mr Plaskitt was unable to explain why funds were transferred between the Centre account and the SMSF account with the entries “loan repayment G Springer” or “AAA loan repayment A Ahola” as the description for the transactions.
In his decision, AAT member Rob Reitano noted that Mr Plaskitt did not do anything to find how these transactions appeared in Dr Cosford’s accounts. G Springer and A Ahola were Mrs Plaskitt’s daughters and Mr Plaskitt’s stepdaughters.
“Knowing that an allegation was made that concerned loans to his stepdaughters, [he] failed to make any enquiries of them or his wife or anyone in order to find out exactly what had gone on. This was in circumstances where he was aware that his wife Mrs Plaskitt, was likely to know what had happened because she was the other partner,” stated Mr Reitano.
“The mention of his stepdaughters’ names obviously would have put him on notice that they might know something about the loans. His conduct in that regard speaks of a complete failure, not simply as he put it to act professionally, but also in a manner that would engender no confidence that he could be trusted. His failure to take any steps at all in that regard does no more than confirm that I cannot be satisfied that he is a fit and proper person.
“I should add that given that the case was before the tribunal, and he had many months to make enquiries, it is simply mindboggling that he did not. A person who was fit and proper and who would be trusted would have done everything possible to get to the bottom of the matter and assist the tribunal in its deliberations.”
The AAT was satisfied that these loans referred were not authorised by Dr Cosford. The AAT was also satisfied that the payments made as “loan repayments” between the Centre and the fund bank accounts were not loan repayments as they failed to reimburse Dr Cosford for the amount of any loan and simply represented transfer between those accounts.
The AAT found that as the sole supervising partner of the partnership, Mr Plaskitt allowed the partnership to misappropriate the funds of Dr Cosford.
“I have found that the partnership made loans from Dr Cosford’s money to itself and to two of the stepdaughters of Mr Plaskitt without the authority of Dr Cosford. I have found that Mr Plaskitt allowed these things to happen whilst he was involved in the partnership as the sole supervising partner,” said Mr Reitano.
“These are serious matters that ultimately affect a person’s fitness and propriety, especially the former as it involves dishonesty or, so far as Mr Plaskitt was concerned, at least, allowing the partnership to engage in conduct that was dishonest. In that light, it is relevant that Mr Plaskitt denied that anything dishonest had happened so far as the payment of the partnership’s tax debt was concerned and so far as the payments to Mrs Plaskitt were concerned. These things strongly suggest that I cannot be satisfied that Mr Plaskitt is a fit and proper person to be a registered tax agent.”
While Mr Reitano noted that the dishonest conduct in the circumstances cannot not be found to be directly that of Mr Plaskitt, it is relevant in assessing the seriousness of the matter more generally that dishonesty is at the core of the main allegation.
“I have found Mr Plaskitt allowed that conduct to take place. I have serious concerns as well about Mr Plaskitt’s understanding of his obligations so far as conflicts of interest and managing them are concerned. His abject failure to assist the tribunal get to the bottom of the unauthorised loans only suggests that there can be little confidence that he will in future adhere to his relevant obligations,” he stated.
The AAT determined that the prohibition on reapplication for registration for a period of five years was appropriate.
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