Federal Court of Australia

Logic Accountants & Tax Professionals Pty Ltd v Tax Practitioners Board [2022] FCA 830

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicants are to pay the respondent’s costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    Hany Mina, the second applicant, was registered as a tax agent on 23 June 2000, and Logic Accountants & Tax Professionals Pty Ltd (Logic), the first applicant, was registered as a tax agent on 28 June 2009. Mr Mina was the sole director of Logic since its incorporation on 4 May 2009, and at all relevant times was its supervising tax agent.

2    Between 2011 and 2018, the Australian Taxation Office (ATO) conducted a series of reviews and audits of the applicants’ affairs and that of their clients. As a result of the ATO’s findings, on 19 May 2018, the ATO referred the applicants to the Tax Practitioners Board (Board). The Board determined that Mr Mina and Logic no longer met the requirements for registration as tax practitioners required by the Tax Agent Services Act 2009 (Cth) (TASA). The Board terminated Mr Mina’s and Logic’s registrations as tax agents which took effect from 6 September 2019. The effect of the terminations was and is that Mr Mina and Logic must not provide tax agent services or they would be subject to civil penalties pursuant to ss 50-5, 50-10 and 50-15 of the TASA. Mr Mina was not permitted to re-apply for registration for a period of 2 years pursuant to s 40-25(1) of the TASA.

3    On 3 September 2019, the applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the Board’s decisions.

4    On 29 March 2021, the Tribunal affirmed the decision of the Board, which terminated the tax agent registrations of both Logic and Mr Mina, and banned Mr Mina from re-applying for registration for a period of 2 years.

5    Mr Mina and Logic appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from that decision of the Tribunal. The applicants rely on their notice of appeal dated 23 April 2021.

6    For the reasons below, the appeal is dismissed.

Legislative scheme

7    The object of the TASA is to “ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct”: s 2-5.

8    The TASA establishes the Board and provides for the registration and regulation of tax agents. Part 3 of the TASA is the Code of Professional Conduct (the Code). The Board may investigate any conduct of a registered tax agent that may breach the TASA, pursuant to s 60-95.

9    Section 20-5(1)(a) provides that an individual is eligible for registration as a registered tax agent or BAS agent if the Board is satisfied that the individual is “a fit and proper person”. In determining whether a person is a fit and proper person to be registered as a tax agent, the Board must have regard to whether the individual is “of good fame, integrity and character”: s 20-15(a).

10    Section 30-10 sets out the Code. It provides, relevantly:

30‑10    The Code of Professional Conduct

Honesty and integrity

…

(2)    You must comply with the taxation laws in the conduct of your personal affairs.

…

Competence

(7)    You must ensure that a tax agent service that you provide, or that is provided on your behalf, is provided competently.

…

(9)    You must take reasonable care in ascertaining a client’s state of affairs, to the extent that ascertaining the state of those affairs is relevant to a statement you are making or a thing you are doing on behalf of the client.

(10)    You must take reasonable care to ensure that taxation laws are applied correctly to the circumstances in relation to which you are providing advice to a client.

…

11    Part 4 of the TASA governs terminations of registrations. As to individuals, the Board may terminate the registration of an individual tax agent if the agent fails to meet one of the tax practitioner registration requirements, one of which is being a fit and proper person: s 40-5(1)(b), or for breaching the Code of Professional Conduct: ss 30-30 and 40-5(1). As to companies, the Board may terminate the registration of a company for ceasing to meet one of the tax practitioner registration requirements: s 40-15(1)(b), or for breaching the Code of Professional Conduct: ss 30-30 and 40-15(1).

12    Where the Board determines that a tax agent has breached the Code, any of the sanctions in s 30-15 may be imposed:

30-15    Sanctions for failure to comply with the Code of Professional Conduct

(1)    This Subdivision applies if the Board is satisfied, after conducting an investigation under Subdivision 60-E, that you have failed to comply with the Code of Professional Conduct.

(2)    The Board may do one or more of the following:

(a)    give you a written caution;

(b)    give you an order under section 30-20;

(c)     suspend your registration under section 30-25;

(d)    terminate your registration under section 30-30.

13    If an agent’s registration is terminated under s 30-30 of the Code, s 40-25(1) of the TASA authorises the Board to impose an additional sanction:

If the Board terminates your registration, the Board may also determine a period, of not more than 5 years, during which you may not apply for registration.

Tribunal decision

14    The Tribunal affirmed the Board’s decisions to terminate the tax agent registrations of Logic and Mr Mina.

15    The Tribunal identified at [70] that the issue for its determination was “whether to terminate the Applicants’ tax agent registrations” and at [71] that this involved consideration of:

(1)    whether the applicants breached s 30-10(2) of the Code in failing to comply with their own taxation obligations;

(2)    whether the applicants failed to ensure they provided competent tax agent services in breach of s 30-10(7) of the Code;

(3)    whether the applicants failed to take reasonable care in ascertaining their clients’ financial affairs in breach of s 30-10(9) of the Code;

(4)    whether the applicants failed to take reasonable care to ensure taxation laws were complied with in breach of s 30-10(10) of the Code; and

(5)    whether Mr Mina is a “fit and proper person” as required by s 20-5(1)(a) of the Act.

Code breaches

16    The Tribunal considered, first, conduct in relation to Logic and Mr Mina’s personal tax affairs, which related to s 30-10(2) of the Code (at [72]-[120]), and second, conduct in relation to clients’ work expenses claims, which related to ss 30-10(7), (9) and (10) of the Code (at [121]-[137]).

17    As to that conduct, the Tribunal considered the applicants’ failure to comply with their tax obligations and their failure to pay debts. The Tribunal found that the applicants breached s 30-10(2) of the Code by not complying with taxation laws in the conduct of their personal affairs: at [99], [115] and [120]. Given the applicants do not challenge the s 30-10(2) breaches, it is unnecessary to consider the Tribunal’s reasoning on this issue in detail, except where it relates to the issue of Mr Mina’s fitness to be registered as a tax agent. As to this, the Tribunal stated at [108]-[111]:

[108]    The Tribunal finds Mr Mina’s evidence that the ATO permitted him to delay paying his tax until his objection application had been determined implausible.

[109]    It should come as no surprise to a tax agent that simply because an objection has been lodged to an income tax assessment, this does not mean that the tax debt imposed must not be paid. The tax is payable pending the objection decision.

[110]    As the above evidence demonstrates, Mr Mina considers that he was not obligated to pay the tax debt pending the outcome of the objection and that his conduct was excusable because he had a right to defend himself. Sections 14ZZM and 14ZZR of the Taxation Administration Act 1953 (Cth) specifically provide that “the fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.” (“emphasis added”)

[111]    Mr Mina was not able to point to any law or authority to support his belief [that he was not obligated to pay his tax debt because he had lodged an objection]. This is of concern to the Tribunal. The primary issue before this Tribunal is Mr Mina’s fitness to be a registered tax agent. If he does not know how the tax law applies in relation to something as mundane as an objection, how can the TPB have confidence that Mr Mina will give his clients appropriate advice on their own assessment rights? The Tribunal believes that Mr Mina does in fact know that he was obligated to pay his tax and that he chose not to. This calls into question his fitness to practice as a registered tax agent.

18    As to the conduct in relation to clients’ work expenses claims, the Tribunal considered the findings of the ATO over the nine-year period between 2009 and 2018. It considered the ATO’s findings that incorrect and excessive WRE and other expense claims had been repeatedly made by Logic’s clients and that these claims were a result of the applicants’ errors: at [121] and [122]. At [123] the Tribunal included a table “by way of example … of the audit results of clients during the 2018 period” which contained findings of the ATO’s 2018 compliance review with respect to 19 clients. The Tribunal considered the evidence that Logic was reviewed and contacted by the ATO on numerous occasions about “unusually high” WRE claims made by its clients, for which Logic’s clients were unable to provide the ATO with sufficient records to substantiate the deductions claimed, and that the ATO would be monitoring ITRs lodged by Logic for higher than expected WRE claims: at [125]-[128].

19    The Tribunal considered Mr Mina’s evidence at [129], stating “Mr Mina rejected the notion that it was tax agent error. Mr Mina, even now, takes no responsibility for the incorrect ITRs he lodged on his client’s behalf.”

20    The Tribunal found that Logic has continued to file inaccurate ITRs on behalf of its clients “despite compliance reviews over a ten year period … advice from the ATO, and repeated adjustments [for WRE claims]”: at [130]. The Tribunal set out the relevant evidence for the years of 2009, 2012, 2015, and 2018 at [131]-[134].

21    At [135], the Tribunal concluded with respect to the conduct in relation to clients’ work expenses claims:

Based on the above, the Tribunal finds that the Applicants have failed to provide tax agent services competently and have failed to take reasonable care that taxation laws are applied correctly. As a result, the Tribunal finds that the Applicants are in breach of sections 30 10(7) and 30-10(10).

22    Additionally, the Tribunal expressed the following concern at [137]:

The Tribunal is concerned about the extent of Mr Mina’s understanding of the required nexus for WRE deductions and the lack of verification and quality control measures that have been implemented.

23    Having found that the applicants breached ss 30-10(2), (7), (9) and (10) of the Code, as stated at [138], the Tribunal turned to consider whether Mr Mina is a “fit and proper person”, which would make him eligible for tax agent registration.

Whether Mr Mina is a “fit and proper person”

24    The Tribunal set out authorities for determining whether a person is fit and proper to handle the tax affairs of a client at [140]-[143]. The Tribunal considered the relevance of “whether the person has understood the error of his ways” at [144], stating that “Mr Mina expressed no acknowledgement that the Applicants’ failure to take reasonable care had impacted its clients”, that “[n]o regret or remorse has been shown”, and that “[i]nstead, the Applicant sought to blame the honesty of the clients or disputed whether the WREs were in fact incorrectly claimed”. The Tribunal was also unsatisfied with “the lack of detail and evidence of the alleged further education and training purportedly undertaken by the Applicants and their staff following the monitoring by the ATO”: at [145].

25    The Tribunal concluded that as a result of Mr Mina’s conduct concerning his own tax obligations and Mr Mina’s lack of technical knowledge regarding WRE claims, he is not a fit and proper person, at [147]-[149]:

[147]    The breaches of the Code by the Applicants raise significant and serious concerns about Mr Mina’s fitness to practice as a registered tax agent. The Code breaches outlined above, spanned a 10-year period. Numerous excuses were proffered to the TPB by Mr Mina, without any corroborating evidence or nexus to the breaches. New reasons were given by Mr Mina at the hearing when pressed on cross-examination, to explain away the conduct, including the claim that Mr Mina had arrangements with the ATO. None of these claims were substantiated. There was no evidence given by Mr Mina that he had a genuine understanding of his errors. Rather, Mr Mina attempted to justify and downplay his conduct. This conduct is not fit and proper.

[148]    In addition to the conduct concerning their own tax obligations, the Tribunal is concerned that Mr Mina’s technical knowledge regarding WRE claims falls short of what is necessary and expected and justifies a finding that he is not fit and proper person.

[149]    The Tribunal finds that Mr Mina is not a fit and proper person as required by section 20.5 of the TASA.

26    The Tribunal considered the relevance of “New Logic” at [150]-[167]. New Logic, trading as Logic Accountants Pty Ltd, is a company that was established shortly after the decisions of the Board terminating Logic’s and Mr Mina’s tax agent registrations, and is controlled by Mr Carlo Tooma, an employee of Logic. New Logic’s clients are a large portion of Logic’s customer base. Having considered the evidence, the Tribunal concluded that “in these circumstances it would be unfair for the Tribunal to conclude Mr Mina was not fit and proper on that basis alone” and that “[t]his kind of arrangement may give rise to an adverse finding of fitness in another matter but in this instance, the Tribunal is not satisfied that the evidence goes far enough”: at [167].

Appropriateness of sanction

27    The Tribunal took into account authorities cited at [173] and [174] regarding the purpose of deregistration.

28    It considered the applicants’ submissions as to the proper sanction at [175]-[184], but did not accept their arguments. Relevantly, the Tribunal found “Mr Mina’s downplaying of the importance of complying with due dates in relation to his personal tax obligations, alarming, disrespectful of the Australian public, and cavalier” (at [178]); that, regarding the applicants’ proposed strategies to ensure the events that led to the terminations are not repeated, there was “insufficient evidence before the Tribunal to assess whether these strategies are sufficient to alleviate the risk that the Applicants’ past conduct will not be repeated” (at [180]); and that, regarding the suggested sanction of the appointment of an approved external tax agent to manage the lodgment of the applicants’ personal returns and statements, “[g]iven the extent of the breaches, this sanction is inappropriate and further does not address the issues concerning the clients’ WRE claims” (at [182]).

29    The Tribunal considered the authorities referred to it by the applicants, to ensure its sanction was consistent with comparable decisions: at [185]-[187], but noted at [187] that “[t]he Tribunal must exercise independent discretion based on the unique facts before it”.

30    The Tribunal set out its conclusion and reasoning on the issue of the appropriate sanction at [188]-[192]:

Conclusion

[188]    In determining the appropriate sanction, the primary importance is the protection of the public and the upholding of tax agents professional and ethical standards. 183 The Tribunal is not convinced that the pattern of conduct of the Applicants will not continue. A two year ban on applying for registration is not the maximum ban that could be imposed.

[189]    Here there are repeated failures over a long period of time to lodge BAS, ITRs, comply with employee obligations to the detriment of employees, failure to pay tax debts resulting in several garnishee notices having to be issued, failing to comply with payment arrangements entered into with the ATO, and numerous occasions of clients making unsubstantiated WRE claims. In addition, there is a lack of evidence to corroborate Mr Mina’s assertions of purported extensions of time and his misguided belief regarding his obligation to pay tax during objection proceedings. Mr Mina also takes no responsibility for and indeed makes no admission for his failure to check and substantiate clients WRE claims.

[190]    In the circumstances, the Tribunal considers that the sanctions imposed by the TPB are appropriate.

[191]    Tax agents have a duty to take reasonable care in the provision of their services. Clients trust that their tax agent has the requisite level of training and knowledge to advise them appropriately. Mr Mina does not demonstrate the requisite level of knowledge and competence that a member of the public would expect of a registered tax agent.

[192]    The Tribunal is not satisfied that Mr Mina is a fit and proper person as required by section 20.5 of the TASA.

Consideration

31    As noted above, this appeal is brought pursuant to s 44 of the AAT Act, which limits the appeal to one that is “on a question of law”. “[O]n a question of law” for the purposes of s 44 has been held to include: (1) whether the Tribunal has identified the relevant legal test; (2) whether the Tribunal has applied the correct test; (3) whether there is any evidence to support a finding of a particular fact; and (4) whether facts found fall within a statute properly construed: Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 at [13]. It is not a merits review. Review of the merits of a decision are for the Tribunal, not this Court: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36; Evans v Secretary, Department of Social Services [2014] FCA 491 at [21]. Even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law: Australian Postal Corporation v Edwards [2014] FCA 1348 at [39]. While a factual finding made without evidence to support it involves an error of law, no such error arises if there is some evidence upon which a Tribunal may make a finding: Holland v Federal Commissioner of Taxation [1999] FCA 1125 at [7]. The weight to be given to the evidence before the Tribunal was a matter for the Tribunal alone. It was entitled to weigh the evidence as it saw fit to reach conclusions that were reasonably open on the evidence: Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 93 ATR 775 at [119].

32    The applicants allege five grounds of appeal as follows:

1.    The Tribunal ignored the legal requirement that the assessment of whether a tax agent is a fit and proper person must be made in a contemporary setting and the assessment made as of the time of the hearing.

2.    The Tribunal made an error of law based upon no evidence and/ or a denial of procedural fairness in relation to the findings concerning the Applicants being involved in incorrect and excessive work-related claims after FY 2015.

3.    The Tribunal ignored critically important, relevant evidence concerning work-related expenses and claims for Financial Years 2018 and 2019, which rationally had to be considered in relation to the current fitness and propriety of the Applicants.

4.    The Tribunal at [70], stated that the issue for determination was whether to terminate the registration of the Applicants, which was procedurally unfair, involved a prejudgment of issues and involved either asking a wrong question or ignoring essential preliminary questions.

5.    In relation to Mr Mina, the Tribunal upheld a two-year ban on any application for reregistration on the basis that it was not the maximum penalty which could be imposed, which involved a failure to give any active consideration to the issue of the sanctions and/ or the period of the ban.

33    Subsequently in submissions, the grounds were grouped into three issues:

(1)    whether the Tribunal erred in its findings in relation to parts of the Section 30-10(7) and (10) Breaches, and whether the Tribunal assessed Mr Mina’s fitness and propriety at the time of the hearing (Grounds 1, 2 and 3);

(2)    whether the Tribunal prejudged the issues for determination (Ground 4); and

(3)    whether the Tribunal gave “active consideration” to the sanctions imposed and the period of termination (Ground 5).

34    The respondent contends that in practical terms, the applicants’ complaints relate to matters of weight, and the appeal is not on a question of law.

Issue 1: Whether the Tribunal erred in its findings in relation to parts of the Section 30-10(7) and (10) Breaches, and whether the Tribunal assessed Mr Mina’s fitness and propriety at the time of the hearing (Grounds 1, 2 and 3)

35    These grounds primarily focus on three aspects: first, whether the Tribunal ignored the legal requirement that the assessment of whether a tax agent is a fit and proper person must be made in a contemporary setting and the assessment made as of the time of the hearing; second, whether the Tribunal misdirected itself or failed to understand the evidence in relation to work-related expenses (with the applicants submitting that the Tribunal erroneously acted on the basis the compliance issues were in 2018 when there was “no evidence that the applicants were involved in any incorrect or excessive work-related claims after financial years 2014 and 2015”); third, whether the Tribunal overlooked or ignored unchallenged evidence of new protocols which had been implemented, and compliance had significantly improved, including in the financial years 2018 and 2019. There was obvious overlap between the submissions advanced by the applicants on these topics.

36    Before addressing these submissions, it is appropriate to make a number of observations to put the complaints made in context.

37    No challenge is made to the conclusions as to the s 30-10(2) breaches, relating to Logic’s and Mr Mina’s tax affairs. As is apparent from the reasons, and the hearing below, the consideration of these breaches was a significant part of the hearing. The Tribunal also found breaches of s 30-10(7), (9) and (10) of the Code, in respect to work-related expenses claims. The applicants conceded during the submissions that they could not challenge that conclusion, at least in respect to the period up until 2015. Having found those breaches of the Code, the Tribunal turned to consider whether Mr Mina is a fit and proper person within s 20-5(1)(a) of the TASA. In doing so, the Tribunal made a number of findings in [144]-[145] which stemmed, at least in part, from the evidence given in the hearing. Having made those findings, the Tribunal reached the conclusion explained in [147]-[149], recited above at [25].

38    Given the nature of some of the applicants’ submissions it is appropriate to recall that the reasons of the Tribunal should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [38]. It is also trite to observe that the reasons should be read as whole, with any impugned passages to be read in the context in which they appear.

39    Turning to the first submission, the alleged failure to apply the correct legal test.

40    I do not accept the applicants’ submission that the Tribunal did not determine the question of whether Mr Mina was a fit and proper person on the basis that it was making an assessment of him as at the time of the hearing. The applicants’ submission is not borne out by a proper reading of the reasons. The Tribunal repeatedly referred to the issue before it being whether Mr Mina is a fit and proper person: see for example, [71], [111], [139], [147], [149], [192]. It is plain, given the factual findings, that the Tribunal was posing the question for consideration at the time of the hearing. An obvious example of this is in the passage at [108]-[111], recited above at [17]. In that context, the conclusion at [191], reflects the correct application of the test:

Tax agents have a duty to take reasonable care in the provision of their services. Clients trust that their tax agent has the requisite level of training and knowledge to advise them appropriately. Mr Mina does not demonstrate the requisite level of knowledge and competence that a member of the public would expect of a registered tax agent.

41    Similarly, this is reflected in [144]-[145], summarised above at [24], which led to the conclusions in [147]-[149], recited above at [25].

42    Nor am I persuaded that the applicants’ second submission, that the Tribunal misdirected itself as to when the work-related expenses breaches occurred, is established. Again, a proper reading of the reasons does not bear out the applicants’ proposition.

43    This submission relies primarily on [121], the chapeau to the table in [123], and [134]. In [121] the relevant portion is:

Following compliance reviews and audits of Logic’s clients over a nine-year period between 2009 and 2018, the ATO found that incorrect and excessive WRE and other expense claims had been repeatedly made by Logic’s clients.

The chapeau to the table in [123] says “[b]y way of example, the Respondent summarised the results of the audit results of clients during the 2018 period as follows”. At [134], the Tribunal stated that “[i]n 2018, all of the 19 audited taxpayers had compliance issues”.

44    However, those passages are not to be read in isolation. The submission takes no account of the Tribunal’s summary of the ATO reviews and audits in [26]-[35], and in particular, [31], [33] and [34] (which is a table reflecting the income years examined in the various compliance reports). Those paragraphs make it abundantly clear that the 2018 compliance review related to the income years of 2014 and 2015. Any reference thereafter to the 2018 compliance review should be read in that context.

45    Nothing in the passages referred to in [121] and [123] suggest otherwise. The compliance report was in 2018, and the compliance reviews did span 9 years. I note also that in the table in [123], the evidentiary source of each of the statements is set out, which would make it clear when the claims were made. That is a correct statement in the chapeau. It says nothing about the income years and there is no basis to infer, in light of the detailed summary at the beginning of the reasons, to infer otherwise. Similarly, the applicants’ reliance on [134] does not suggest otherwise. To that paragraph the Tribunal footnoted in support a reference to the evidence, being the summary of outcomes for the March compliance review (which is evidence also cited in respect to the summary of compliance reviews).

46    In addition, in so far as the applicants rely on [130], the context is significant. At [130] the Tribunal stated (footnotes containing evidentiary references are omitted):

Despite compliance reviews over a ten year period (in 2009, 2012, 2015 and 2018), advice from the ATO, and repeated adjustments needed to be made for the same type of WRE claims, Logic has continued to file inaccurate ITRs on behalf of its clients.

47    However, in the preceding paragraph at [129], the Tribunal concluded (footnotes containing evidentiary references are omitted):

Mr Mina said he has no control over whether a client has lied and had no power to verify a client’s instructions. Mr Mina also claimed that he could not make a client challenge the view of the ATO and that if the client does not lodge an objection to the ATO’s assessment, this does not mean that the client was not correct in his/her claims. Mr Mina rejected the notion that it was tax agent error. Mr Mina, even now, takes no responsibility for the incorrect ITRs he lodged on his client’s behalf.

48    It follows that [130] is directly referable to the conclusion in [129]. Moreover, at the end of the first line in [130] (after the reference to the years in brackets), the Tribunal footnoted references to the evidence.

49    The Tribunal then referred to a summary of the results of each of the reviews, before the conclusion at [135]. That summary bears out that there were multiple reviews, and that, for example, even after a review, there were still the same issues.

50    It was in the above context that the Tribunal at [135] concluded that there was a breach of s 30-10(7) and 30-10(10).

51    It follows that the applicants have not established the submission that “the findings that were made were present breaches, present and continuing breaches [relating to WRE] by the applicants”. I do not agree with the applicants’ submission that the Tribunal was saying that the issue continued after 2018.

52    That leaves the third issue, whether the applicant has established that the Tribunal overlooked or ignored the evidence of new protocols and the evidence that there had been significant improvement with compliance with work-related expenses. These aspects of the third issue appear to be interrelated.

53    As the respondent correctly submitted, that evidence could not affect the question of whether the breaches which were alleged had occurred. As previously observed, the applicants conceded that the breaches in the period up to 2015 could not be challenged. In that context the applicants’ submission is that the improvements and protocols have not been considered. That is said to be relevant to the issue of whether Mr Mina is a fit and proper person.

54    There are two aspect of the reasons which refer to conduct by the applicants said to be relevant to addressing issues in the ATO investigations.

55    At [144]-[145] which is summarised above at [24], the Tribunal referred to Mr Mina’s lack of acceptance of responsibility, which includes in relation to the work-related claims. The Tribunal then proceeded in that context to conclude that it was also unsatisfied with the lack of training and education by the applicants and their staff following being monitored by the ATO. This, the Tribunal said was relevant to ensure no further lapses of standards. Again, in context, this analysis must include consideration of work-related expenses.

56    Also at [179]-[181], The Tribunal explicitly referred to such matters which were relied on by the applicants as relevant to the risk of repetition of the conduct, and therefore to any sanction. Leading to this at [175], the Tribunal recited the submission made as to a change in work practices to mitigate compliance risks in relation to work-related expenses. Some of those matters in [179] appear to address changes directed to the work-related expenses. The Tribunal concluded at [180]:

There is no corroborating evidence or sufficient detail about the strategies - what do these strategies mean in practical terms? It is unclear. There was insufficient evidence before the Tribunal to assess whether these strategies are sufficient to alleviate the risk that the Applicants’ past conduct will not be repeated.

57    This conclusion necessarily reflects on the strategies in respect to work-related expenses.

58    Although [179]-[181] is in that part of the reasons considering sanctions, it is difficult to accept, particularly in light of the reference at [145], that the Tribunal ignored the evidence complained of (being new protocols to address the work-related expenses) in so far as it was said to be relevant to the assessment of whether Mr Mina was a fit and proper person.

59    I am not persuaded that the Tribunal ignored or overlooked that evidence in its assessment of whether Mr Mina is a fit and proper person. I note that in that assessment, the Tribunal stated that it was concerned that Mr Mina’s technical knowledge regarding work-related claims falls short of what is necessary and expected: at [148] (no doubt based on matters such as those referred to in [144]). This in a context where the Tribunal had concluded at [125]-[137] that breaches had been established, and particularly at [137] expressed “[concern] about the extent of Mr Mina’s understanding of the required nexus for WRE deductions and the lack of verification and quality control measures that have been implemented”. It was not contended that those findings were not open on the evidence. Although I note that in this Court the applicants submitted that they did not accept that the conduct referred to at [123] (relating to the work-related matters which were the subject of the audit) was proved against them as wrongdoing, but for the purpose of these submissions they accepted the premise that the audit results were a cause for concern in the years to which they relate.

60    In the context of findings such as those above, it appears that the Tribunal did not give any of the protocols the weight that the applicants submit it ought to have. Weight, however, is a matter for the Tribunal.

61    As to the purported improvement of the applicants’ compliance in 2018 and 2019, it may be accepted that this was not expressly referred to.

62    The applicants’ submission on this topic was rather conflicted. On the one hand, the applicants submitted that there “is no evidence that the applicants were involved in any incorrect or excessive work-related claims after financial years 2014 and 2015”, and therefore any matter taken into account post that time was erroneous. I note that contrary to the applicants’ submission, there is evidence before the Tribunal as to events after 2015, which reflect that in 2017, although the practice of claiming excessive work-related expenses had improved, it was still occurring well above the average standard compared to other practitioners. On the other hand, the applicants submitted that the Tribunal could take into account evidence of the improvement in 2018 and 2019. Nonetheless, it may be accepted that such evidence in relation to 2018 and 2019 may be relevant to whether Mr Mina is a fit and proper person. That said, what weight it may carry depends on the circumstances, which relevantly include those described above at [59].

63    The failure to refer to evidence does not necessarily lead to the inference that the evidence was not considered: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34].

64    Given the findings by the Tribunal and the basis for them, I am not satisfied that this evidence was not taken into account. It merely did not have the significance the applicants now contend for. It is important to bear in mind this was only one aspect of the evidence in relation to only one of the topics the subject of the breaches. It is also important to recall the findings made by the Tribunal as to Mr Mina’s evidence (none of which are contended not to be open). Moreover, although the applicants repeatedly referred to this evidence as being unchallenged, that does not change or elevate the significance of it. Rather, it is apparent that the respondent contended for the findings made. It plainly took issue with the purported significance of this evidence, particularly in light of the other established breaches committed by Mr Mina (some of which continued in 2018 and 2019) and in light of Mr Mina’s evidence.

65    I am not persuaded that the failure to refer to this evidence means the matter was ignored. Rather, given the Tribunal’s findings, it is clear that it was, instead, given little weight. In any event, even if the evidence had not been considered, given the reasoning and findings of the Tribunal, not doing so could have made no difference: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147-148. Moreover, a proper reading of the reasons does not support the applicant’s submission that the Tribunal found that Mr Mina was not a fit and proper person based principally on the findings in relation to the work-related expenses. Indeed, in light of the findings made, there was no real submission advanced as to how this matter, if taken into account in the way for which the applicants contend, could have made a difference.

66    Finally, I note that the respondent submitted that [147], recited above at [25], reflects that Mr Mina would have been found not to be a fit and proper person on the personal breaches alone. It is plain that a substantial portion of the hearing was directed to these claims. Read fairly and in context, in particular, with [148] (which is directed to work-related expenses), the respondents’ interpretation of that paragraph is reasonably open. The submission advanced to the contrary by the applicants that [147] concludes with the phrase “[t]he conduct is not fit and proper”, rather than “he is not a fit and proper person”, is, in the context of the reasons, a matter of semantics. The Tribunal’s reference to the work-related expenses at [148] was in addition to that conclusion.

67    It also follows, on that basis, that even if there were some error in respect to work-related expenses, it could have had no effect on the outcome.

68    Grounds 1, 2 and 3 are not established.

Issue 2: Whether the Tribunal prejudged the issues for determination (Ground 4)

69    The applicants’ submission on this is simple: the Tribunal misdirected itself at [70] by stating that the issue for the Tribunal was whether to terminate the applicants' tax agent registrations. It was submitted that this was “not remedied” by [71] in which the Tribunal stated that the question at [70] will involve a consideration of whether the applicants took certain actions or, in the case of Mr Mina, whether he is a fit and proper person.

70    Although the description complained of was inaccurate, it is clear from the detailed reasons of the Tribunal that it did not view termination as the only issue, and when commencing its analysis of the appropriate sanction, it noted the other sanctions that could be imposed.

71    In light of [71], recited above at [15], it is readily apparent that the Tribunal did not consider the issue for the Tribunal’s resolution was so confined. This is also borne out by a consideration of the reasons as a whole. Nor, in the context in which it appears, does it suggest bias or any prejudgment, as contended for by the applicants.

72    The applicants submitted that prior to the impugned passage, the Tribunal had only considered allegations against the applicants, the stay application in December 2019, and what it described as the legislative background to the matter. It had not considered any evidence or submissions by Mr Mina or on behalf of Logic. It was submitted that the Tribunal therefore gave at least the appearance that without any consideration of the case, the Tribunal had formed a view that the issue for it was whether to terminate the applicants’ tax agent registrations. The problem with that submission is that it fails to take account of what occurred thereafter, and the detailed consideration of the issues as to whether the breaches were established and whether Mr Mina was a fit and proper person. Indeed, one aspect of the claims made by the respondent were found not to be established. Having made findings it did, at [168] and following, the Tribunal considered the issue of sanction, and the analysis reflects that in so doing it considered and addressed the submissions advanced by the applicants.

73    Ground 4 is not established.

Issue 3: Whether the Tribunal gave “active consideration” to the sanctions imposed and the period of termination (Ground 5)

74    This complaint relates to the Tribunal’s conclusion that Mr Mina may not apply for registration for 2 years. It was contended that the Tribunal noted that the Board determined that Mr Mina may not apply for a period of 2 years. It was submitted that the jurisdictional task of the Tribunal was to consider this matter afresh, and it did not do so. The applicants refer to [188], recited above, and submitted the Tribunal did not give any reason why such sanction was appropriate other than state that it was not the maximum period and state what is at [189]. It was submitted that [189] is infected by the Tribunal's erroneous consideration of the work-related claims and its failure to consider relevant important and indeed unchallenged evidence.

75    The paragraphs complained of must be considered in their context. As apparent from the summary of the Tribunal’s reasons above, it repeated and addressed submissions as to sanctions which were raised by the applicant. It rejected the applicants’ submissions as to seriousness of the breaches. As explained above, the Tribunal also addressed at [179]-[181] the submission as to the steps taken by the applicants since the involvement of monitoring by the ATO. The Tribunal referred to relevant legal principles. They include, as set out in [187], in the paragraph immediately preceding the impugned paragraphs, that the Tribunal must exercise independent discretion.

76    At [189], the Tribunal explained its position. I do not accept that this reasoning is based on an erroneous consideration of the work-related expenses issue, for the reasons explained above. I note also that it is not contended that the finding at [180] in respect to the steps taken by the applicants was not open to the Tribunal.

77    At [190], the Tribunal stated that “[i]n the circumstances, the Tribunal considers that the sanctions imposed by the [Board] are appropriate”. At [191], the Tribunal further explained that conclusion.

78    I am not satisfied that, as the applicant contends, the sanction was not considered afresh. In a context where the Tribunal can affirm the Board’s decision, by phrasing the conclusion as it did, and read in the context of the reasons, the Tribunal’s conclusion does not reflect the matter was not given “active consideration”.

79    Ground 5 is not established.

Conclusion

80    The applicants have not established any of the grounds of appeal. Accordingly the appeal is dismissed, with costs.

Associate:

Dated:    19 July 2022