Federal Court of Australia

Tax Practitioners Board v Free [2026] FCA 1155

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Review Tribunal dated 10 February 2026 is set aside.

3.    The proceeding be remitted to the Administrative Review Tribunal (differently constituted) to be determined according to law.

4.    The respondent pay the applicant’s costs of the appeal.

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

REASONS FOR JUDGMENT

DOWNES J:

Synopsis

1    On 10 February 2026, the Administrative Review Tribunal (Tribunal) set aside the decisions of the applicant (the Board) to terminate the registration of the respondent (Mr Free), as a registered tax agent under the Tax Agent Services Act 2009 (Cth) (TAS Act), and instead decided to give him a written caution and to require him to undertake and complete certain remedial education: Free and Tax Practitioners Board [2026] ARTA 319 (Reasons).

2    By a notice of appeal dated 10 March 2026, the Board appeals from the Tribunal’s decision.

3    The notice of appeal contains five questions of law:

1.    Did the Tribunal err in law by failing to properly apply the correct legal test for whether Mr Free was a “fit and proper” person within the meaning of ss 20-15(a) and 20-5(1)(a) of the [TAS Act] by relying on irrelevant, subjective considerations?

2.     Was the Tribunal’s finding that Mr Free was a “fit and proper” person within the meaning of ss 20-15(a) and 20-5(1)(a) of the [TAS Act], and therefore termination of registration as a tax agent was “not appropriate”, unreasonable?

3.     Was the Tribunal’s finding that Mr Free did not exercise informal control over the company referred to in the Decision as MPC legally unreasonable and/or affected by illogical or irrational reasoning?

4.     Did the Tribunal err in law by determining that the conclusive evidence provision in s 350-10(4) of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA) should not apply?

5.     Did the Tribunal err in law by considering the subject and content of extant objections lodged by Mr Free to notices of assessment that had been issued by a Deputy Commissioner of Taxation to which the conclusive evidence provision in Item 2 in s 350-10(1) of Schedule 1 to the TAA applied?

(Emphasis original.)

4    For the following reasons, the Board has established that the Tribunal’s decision was affected by legal error. Accordingly, the appeal will be allowed, the Tribunal’s decision will be set aside, the proceeding will be remitted to the Tribunal (differently constituted) to be determined according to law, and costs will follow the event.

Background

5    The following facts are common ground or are derived from the Reasons, to which there is no factual challenge.

6    On 31 January 1990, Mr Free was appointed a director of Osprey Pty Ltd (OPL). The following year, Mr Free established the Free Family Trust of which OPL was the corporate trustee (Family Trust).

7    On 19 June 1997, Mr Free established the Montrose Superannuation Fund (SMSF), a self-managed superannuation fund of which OPL was initially the corporate trustee.

8    On 14 March 2014, Mr Free ceased to be a director of OPL and was replaced by his wife as the sole director. Since 10 December 2014, Mr Free’s wife has also held all the shares in OPL. Mr Free was reappointed as a director of OPL on 30 June 2021.

9    On 15 March 2017, OPL was replaced by Okfield Pty Ltd (OKPL) as corporate trustee for the SMSF. On 3 February 2018, OKPL was, in turn, replaced by Montrose Pastoral Company Pty Ltd (MPC) and Mr Free’s wife became the sole director of MPC. She has also held all of the shares in MPC since at least 28 February 2018.

10    On 24 September 2020, Mr Free submitted an application to the Board for tax agent registration. In that application, Mr Free answered “[n]o” to the following question: “[d]o you or any associated entities that you have direct, or indirect control over, have overdue tax obligations?”. Before the Tribunal, Mr Free accepted that the SMSF had outstanding tax lodgement obligations at that time and that he was aware that those obligations were outstanding when he submitted the application for registration.

11    In September 2020, Mr Free was summarily dismissed by his employer (an accounting firm) for “an alleged failure to follow reasonable management directions on several occasions and engaging in dishonest conduct”.

12    Mr Free commenced unfair dismissal proceedings against his former employer in the Fair Work Commission (FWC). The FWC proceeding was listed for hearing in January 2021, but the hearing was vacated when the parties’ representatives advised that an in-principle settlement had been reached. In relation to this, Mr Free sent an email to an officer of the Board on 19 January 2021 which included the statement that the settlement “unequivocally means that [my former business partner and employer has] accepted my employment was unfairly terminated.”

13    The settlement discussions broke down, and a hearing was then held in mid-May 2021. Prior to written closing submissions being filed in the FWC, Mr Free withdrew his application.

14    In April 2022, the FWC made an indemnity costs award against Mr Free accompanied by detailed reasons (FWC’s Reasons). The FWC’s Reasons, although concerned only with the costs issue, include adverse findings against Mr Free in respect of the allegations made by his former employer.

15    In particular, the FWC’s Reasons stated that the FWC accepted “without any hesitation” that Mr Free had made an assertion concerning the completed audit of certain accounts in late June 2020 “when he knew this to be untrue”, and characterised his failure to comply with the employer’s direction as “belligerent”.

16    On 20 January 2024, Mr Free submitted an application to the Board for renewal of his tax agent registration. In response to the question “[d]o you have any matters that may affect your good fame, integrity and character… to disclose?”, Mr Free answered “[n]o”.

17    On 13 February 2025, the Board made a decision to terminate Mr Free’s registration as a tax agent, and to prohibit him from re-applying for registration for two years from the date the termination of the registration took effect. In summary, it concluded that Mr Free failed to act with integrity and honesty in his communications with the Board and failed to comply with his tax obligations in respect of his personal affairs.

18    Mr Free applied to the Tribunal for review of the Board’s decision. On 10 February 2026, the Tribunal found that Mr Free was a fit and proper person to be registered as a tax agent.

The Grounds relied on

19    The notice of appeal contains five grounds:

1. With respect to the first question of law, the Tribunal failed to apply the correct test for whether Mr Free was a fit and proper person in that it took into account the following subjective and irrelevant considerations:

a. Mr Free’s subjective view of his grievance with his former employer (Decision [156] – [157]);

b. “human dimensions” considered to have influenced Mr Free's conduct (Decision [158]);

c. “personal factors” (Decision [164]); and

d. the lack of evidence as to unsatisfactory conduct in providing services to clients (Decision [165]).

2. With respect to the second question of law, the Tribunal’s conclusion (Decision [166]) that Mr Free was a fit and proper person was legally unreasonable in that:

a. the Tribunal made findings that Mr Free failed to act with integrity in relation to statements made to the Board that there were no matters relevant to his good fame to be disclosed (Decision [80], [115], [154], [162], [163]);

b. the Tribunal made findings that Mr Free’s lack of integrity was ongoing and his continued denial of wrongdoing indicated a lack of insight into the need for frank and open communications between tax agents and their regulatory body (Decision [155]);

c. the Tribunal characterised its findings regarding the severity of Mr Free's conduct as “significant in determining whether the applicant is a fit and proper person to be a registered tax agent” (Decision [161]);

d. the Tribunal further found that Mr Free breached the Code of Professional Conduct in the [TAS Act] by failing to comply with his personal taxation obligations in relation to the company referred to in the Decision as OPL (Decision [107] – [110], [163]);

e. the Tribunal placed emphasis on Mr Free’s subjective view of his grievance with his former employer (Decision [156] – [157]) and “human dimensions” considered to have influenced Mr Free's conduct (Decision [158]) in the absence of Mr Free himself advancing such matters in explanation or mitigation of his conduct;

f. by reason of the matters in (a) to (e) above, the conclusion at [166] of the Decision:

i. is not capable of being supported by the evidence; and

ii. is not based on any identifiable logic or reasoning.

3. With respect to the third question of law, the Tribunal’s conclusion at Decision [44] that Mr Free did not have informal control over the company referred to in the Decision as MPC was legally unreasonable in that:

a. the Tribunal found that Mr Free’s wife, as director of MPC, “generally acted in accordance with her husband's advice and left accounting and taxation matters largely in his hands” (Decision [39]);

b. in the above premises, the conclusion (Decision [44]) that Mr Free did not have informal control of MPC is:

i. directly contradictory to the finding made at Decision [39]; and

ii. is not based on any identifiable logic or reasoning.

4. With respect to the fourth question of law, the Tribunal’s conclusion at Decision [145] that the conclusive evidence provision in s 350-10(4) of Schedule 1 to the TAA should not apply was incorrect at law and alternatively legally unreasonable in that:

a. copies and/or extracts of notices of assessment issued by a Deputy Commissioner of Taxation were before the Tribunal;

b. the Tribunal is not bound by the rules of evidence per s 52 of the Administrative Review Tribunal Act 2024;

c. the accuracy of the copies and/or extract of notices of assessment in evidence was not disputed;

d. the Tribunal ought to have applied the conclusive evidence provision in its Decision; and

e. alternatively, in the above premises, the conclusion at Decision [145] that the conclusive evidence provision should not apply was not based on any identifiable logic or reasoning.

5. With respect to the fifth question of law, the Tribunal’s approach at Decision [145] to considering the subject and matters raised by the objections lodged by Mr Free with the Commissioner of Taxation was incorrect at law and alternatively legally unreasonable in that:

a. Item 2 in s 350-10(1) of Schedule 1 to the TAA applies to notices of assessment issued by a Deputy Commissioner of Taxation;

b. the proceeding was not a Part IV of the TAA proceeding;

c. the approach of the Tribunal at Decision [145] required consideration and assessment of matters beyond the scope of the proceeding and covered by the conclusive evidence provision in Item 2 in s 350-10(1) of Schedule 1 to the TAA; and

d. in the above premises, the approach of the Tribunal at Decision [145]:

i. involved the Tribunal taking into an account an irrelevant consideration, being the subject matter of the objections and their prospects of success; and

ii. was otherwise not based on any identifiable logic or reasoning.

(Emphasis original.)

Grounds 1 and 2

20    The parties dealt with grounds 1 and 2 together, and I will do the same.

The reasons of the Tribunal

21    Before the Tribunal, Mr Free submitted that the review required consideration of certain issues including the following:

(1)    Issue 1: Did Mr Free fail to act honestly and with integrity and thereby breach s 30-10(1) of the TAS Act?

(2)    Issue 2: Did Mr Free fail to comply with taxation laws in the conduct of his “personal affairs” and thereby breach s 30-10(2)?

(3)    Issue 3: Is Mr Free a fit and proper person for the purposes of s 20-5(1)(a)?

22    Notwithstanding that the Tribunal answered “yes” to Issue 1 and Issue 2 (see, for example, [115], [116] and [163] of the Reasons), the Tribunal also answered “yes” to Issue 3: Reasons at [166].

23    In relation to Issue 1, the Board’s submissions were on two bases. The first basis related to communications by Mr Free relating to his control over the SMSF. The issue relating to control over the SMSF (and the corporate trustee of the SMSF) is the subject of ground 3.

24    The second basis on which the Board submits that Mr Free failed to act with honesty and integrity relates to his application for renewal of his tax agent registration which he lodged with the Board on 20 January 2024, when he answered “[n]o” to the question “[d]o you have any matters that may affect your good fame, integrity and character … to disclose?”: Reasons at [46]–[47].

25    As noted at [58] of the Reasons, the allegation is not based on the 20 January 2024 response in isolation. Rather, the Board emphasised that it was made in the circumstances where Mr Free:

(1)    had withdrawn his unfair dismissal application; and

(2)    had previously advised the Board by email dated 19 January 2021 that the former employer had conceded that the dismissal was unfair.

26    At [62] of the Reasons, the Tribunal noted other contextual matters:

(1)    Mr Free does not accept the former employer’s allegations (see also [65]);

(2)    the Board’s allegations relate to the failure to disclose the allegations against Mr Free by the former employer and the FWC’s Reasons (see also footnote 15); and

(3)    the impugned response to the question by Mr Free in his application was made almost two years after the FWC’s Reasons were handed down (see also [66]).

27    At [67]–[68] of the Reasons, the Tribunal stated:

Without more, I would accept that it was not unreasonable for the applicant to take the view that issues arising in proceedings that were terminated some two years previously, without any formal ruling, were not relevant to the matters that may affect his good fame, integrity and character. The allegations arose, after all, in the context of an acrimonious parting of the ways of former business partners and in his mind were never accepted by the applicant.

However, as mentioned, the FWC’s findings in the costs decision handed down in April 2022, included adverse findings against the applicant. Again, the context is important. It is not a case where the allegations had not been aired when the proceeding was terminated. It was not until after the FWC had heard the evidence in the case and made directions for filing of closing submissions that the applicant withdrew his application.

28    At [70] and [74] of the Reasons, the Tribunal described the finding by the FWC that Mr Free had made an assertion “when he knew this to be untrue” as damning and that:

… [T]he question on the form [submitted to the Board] also addresses the applicant’s good fame. The existence of a finding by the FWC that the applicant asserted in a return that the SMSF’s accounts had been audited, when he knew they had not been, is undoubtedly relevant to the applicant’s good fame. The FWC’s reasons, including this finding, are published in full on AUSTLII. The applicant may contest the finding, but the very existence of the finding is capable of affecting the applicant’s good fame.

29    At [75]–[80] of the Reasons, the Tribunal stated:

The applicant continued to approach the issue on the basis that he did not accept the allegations and that the substantive FWC case was finalised without the issues being resolved.

However, it must have been clear to the applicant that the Former Employer did not accept that the termination was unfair. Even if the applicant genuinely believed that to be the case when it was thought a settlement had been reached, that cannot have been so after the settlement fell through. In any case, by the time the FWC reasons for the costs decision were released, it must have been clear beyond doubt that the Former Employer maintained its allegations and did not accept that the termination was unfair.

In his oral evidence to the Tribunal, the applicant asserted that even after the costs decision he did not know the FWC had made a finding that he had engaged in dishonest conduct. After everything that had occurred in the FWC proceedings and the FWC’s unequivocal findings set out in its reasons, without further explanation it would defy commonsense to accept that evidence as truthful.

The applicant offered no explanation for these assertions in either his cross-examination or in re-examination. The FWC reasons were provided in the context of a substantial costs award against the applicant in an amount far in excess of the amount he was apparently prepared to accept in the failed settlement negotiations. It was a serious matter for the applicant. The applicant read the FWC’s reasons and must have seen the serious finding of dishonesty in relation to the SMSF audit. He did not assert otherwise. He did not say that he misunderstood the findings. In those circumstances, I cannot accept the applicant’s evidence that he did not know the FWC had made a finding of dishonesty against him.

The applicant denied that he did not disclose the finding that he had been terminated for reasons that included dishonesty because it would count against him in the Board’s deliberations. The finding of dishonest conduct was in relation to an issue directly relevant to the applicant’s professional responsibilities as a tax agent; that is, the accuracy of the SMSF’s income tax return. The applicant could have disclosed the FWC findings to the Board and put forward submissions as to why, as he asserts, they should not count against him. He did not say that the matter did not occur to him when he completed the form. I conclude that he made a deliberate choice not to disclose the findings.

The Code’s requirement is that tax agents act both honestly and with integrity. I accept the applicant’s submission that a finding of dishonesty would require a finding of intent. However, in circumstances where an official adjudicatory body has made serious findings of dishonest conduct directly related to the applicant’s obligations as a tax agent, integrity would demand that, when prompted to disclose matters that may affect the tax agent’s good fame, integrity and character, the tax agent would disclose the circumstances to the Board for consideration. The applicant made a deliberate choice not to do so. I conclude that the applicant failed to act with integrity in relation to the statement that there were no matters relevant to his good fame to be disclosed.

(Emphasis added; footnotes omitted.)

30    Thus, in summary and in relation to Issue 1, the Tribunal:

(1)    did not consider that Mr Free gave truthful evidence in the Tribunal hearing, and did not accept his evidence that he did not know the FWC had made a finding that he had engaged in dishonest conduct;

(2)    found (twice) that Mr Free made a deliberate choice not to disclose the existence of the FWC’s Reasons to the Board – in particular, that he chose not to disclose the existence of “serious findings of dishonest conduct directly related to [Mr Free’s] obligations as a tax agent”; and

(3)    concluded that Mr Free failed to act with integrity in relation to the statement that there were no matters relevant to his good fame to be disclosed. This finding is repeated at [115] of the Reasons.

31    The Reasons continued at [154]–[162]:

I have found this to be a difficult issue. On the one hand, for the reasons I have indicated, I accept that the applicant failed to act with integrity in not disclosing the FWC’s adverse findings. Additionally, the non-disclosure was ongoing; the applicant had many months to reflect upon the findings and accept that they should be disclosed to the Board, particularly in light of his email of 19 January 2021 asserting that the Former Employer had accepted that his termination was unfair.

Further, the applicant continues to deny there was any lack of integrity. That suggests a lack of insight into the need for frank and open communications between tax agents and their regulatory body which is a cornerstone of the effective operation of any regulatory regime.

On the other hand, it is clear the applicant maintains that he is the innocent party and remains aggrieved by his perception of the actions of the Former Employer. His assessment of the whole matter is inevitably filtered through the lens of the emotion attached to his sense of grievance. It was, after all, the applicant who initiated the proceedings against the Former Employer.

Those feelings of grievance may or may not be well-founded. For the reasons indicated earlier, it is not part of my role to adjudicate upon the matters that were the subject of the FWC proceedings. However, I have no doubt the feelings of grievance are real, and that the applicant’s perception of the matter is impacted by those emotions.

My consideration of the matter comes down to this. Having regard to the human dimensions which I believe have heavily influenced if not clouded the applicant’s response, I do not see the applicant’s failure to disclose the FWC’s findings as quite as reprehensible as the Board suggests.

Nevertheless, there is, for the reasons I have indicated, a lack of integrity in the applicant failing to disclosure the adverse findings. Those findings, whether accepted by the applicant or not, were directly relevant to the applicant’s good fame as a person to be entrusted with the preparation of income tax returns. They are clearly matters that should have been disclosed to the Board, with whatever explanation the applicant might have seen fit to provide. Simply remaining silent, while perhaps an understandable course given the time that had passed, is not indicative of an open and honest approach to dealing with the Board.

Additionally, there is a concerning lack of insight in the applicant still maintaining that he did nothing wrong. There is also a concern regarding his honesty in maintaining, in evidence before the Tribunal, that he was not aware of the FWC findings.

In summary, I take the approach that the integrity issue is not of the same gravity as the Board asserts. However, I take it into account as a significant matter in determining whether the applicant is a fit and proper person to be a registered tax agent.

The position may have been different if the FWC findings were in respect of matters unrelated to a tax agent’s duties. However, the findings regarding the statement that the SMSF accounts had been audited relates directly to the applicant’s fitness to be a tax agent. Whether the applicant simply hoped the findings would not come to attention is not clear. What is clear is that a tax agent acting with integrity would have disclosed these serious findings relating to his duties as a tax agent to the Board. The applicant did not do so.

(Emphasis added to the impugned paragraphs.)

32    At [163] of the Reasons, the Tribunal observed that there “has been substantial non-compliance by [Mr Free] with taxation laws” and that Mr Free “failed to act with integrity in not disclosing the adverse FWC findings to the Board”, which were “serious matters”.

33    At [164] of the Reasons, the Tribunal stated that these matters “must be considered in the context I have outlined above. That includes the emotional response of the applicant to circumstances in which, rightly or wrongly, he considers he has suffered a grievous wrong …. Again, these do not excuse the conduct but in my view they provide a significant degree of mitigation”.

34    At [166] of the Reasons, the Tribunal concluded that:

Overall, considering matters as they stand today, I am persuaded that the applicant is a fit and proper person to be a tax agent. I do emphasise, though, that this conclusion is based on the evidence as it stands before me today. The applicant would be well-advised to ensure full transparency in his future dealings with the Board and not rely on contestable constructions of documents or events.

The parties’ submissions

35    In summary, the Board submits that the Tribunal’s conclusion that Mr Free was a fit and proper person was infected with jurisdictional error, either because the Tribunal applied the incorrect test by taking into account subjective and irrelevant considerations (being those which are emphasised above) or alternatively because the finding was legally unreasonable in light of the Tribunal’s other findings, including an implicit finding that Mr Free had been dishonest. The Board submits that there is a leap in logic from the serious findings made by the Tribunal about Mr Free’s conduct on one hand (including in his evidence before the Tribunal) to the ultimate conclusion that he was nonetheless a fit and proper person.

36    In response, Mr Free submits that the Tribunal’s regard to the “human dimensions” which the Tribunal believed had heavily influenced, if not clouded his response, and the finding that his “failure to disclose the FWC’s findings [was not] as reprehensible as the Board suggests”, amounted to no more than the Tribunal ascertaining the weight that it should give to the evidence, having had the benefit (and forming a view) of the evidence and observing Mr Free under cross-examination.

37    Mr Free cites and relies upon the decision of Tax Practitioners Board v Auz Tax Pty Ltd [2026] FCA 751. In that case at [34]–[45], Horan J provides a helpful summary of the relevant features of the statutory regime established by the TAS Act. By reference to the facts of that case, Horan J observed at [79]:

It was a matter for the Tribunal to weigh these findings in order to evaluate whether Mr Bagga presently met the description of a “fit and proper person” to provide tax agent services. The Tribunal clearly did not assume that a lack of dishonesty was itself sufficient to demonstrate fitness and propriety. The Tribunal had regard to the nature and seriousness of Mr Bagga’s past conduct and the extent to which there was a continuing non-compliance with obligations under the Code. While it might be possible for reasonable minds to differ as to whether Mr Bagga was a fit and proper person, the finding that past conduct demonstrated a lack of integrity did not compel a conclusion that he was not a fit and proper person, nor did the findings of past or continuing breaches of the Code.

38    Mr Free also submits that the Reasons must be viewed in context and as a whole. He refers to the Tribunal’s consideration of mitigation at [46]–[80], [153]–[162] and [164] of the Reasons and contends that these paragraphs set out a clear line of reasoning of relevant factors taken into consideration in applying the correct test.

39    Finally, Mr Free submits that the Tribunal did not make any finding of “dishonesty”, but rather found that he failed to act with integrity.

40    For the same reasons, Mr Free submits that the Board’s position in relation to unreasonableness is misconceived and that no legal unreasonableness is established. To demonstrate the Tribunal’s coherent and logical reasoning process, Mr Free emphasises [163]–[166] of the Reasons.

Analysis

41    Mr Free’s submission that the Tribunal did not make any finding of dishonesty cannot be accepted when the Reasons are reviewed as a whole.

42    Mr Free gave oral evidence to the Tribunal to the effect that even after the FWC’s Reasons were published, he did not know that the FWC had made a finding that he had engaged in dishonest conduct. The Tribunal stated that “it would defy commonsense to accept that evidence as truthful” and could not accept that evidence in circumstances where the FWC’s Reasons were provided in the context of a substantial costs award against Mr Free; it was a serious matter for Mr Free; Mr Free admitted that he had read the FWC’s Reasons and must have seen the serious finding of dishonesty; and Mr Free had offered no explanation for his assertion in cross-examination and re-examination: Reasons at [77]–[78]. The Tribunal also concluded that Mr Free made a deliberate choice not to disclose the findings in the FWC’s Reasons to the Board “in circumstances where an official adjudicatory body has made serious findings of dishonest conduct directly related to [Mr Free’s] obligations as a tax agent”: Reasons at [79]–[80].

43    The Tribunal’s concern with Mr Free’s lack of honesty is further evident in [159]–[160] of the Reasons:

Nevertheless, there is, for the reasons I have indicated, a lack of integrity in the applicant failing to disclosure [sic] the adverse findings. Those findings, whether accepted by the applicant or not, were directly relevant to the applicant’s good fame as a person to be entrusted with the preparation of income tax returns. They are clearly matters that should have been disclosed to the Board, with whatever explanation the applicant might have seen fit to provide. Simply remaining silent, while perhaps an understandable course given the time that had passed, is not indicative of an open and honest approach to dealing with the Board.

Additionally, there is a concerning lack of insight in the applicant still maintaining that he did nothing wrong. There is also a concern regarding his honesty in maintaining, in evidence before the Tribunal, that he was not aware of the FWC findings.

(Emphasis added.)

44    When considered as a whole, the Reasons disclose that the Tribunal effectively found that Mr Free had been dishonest including (most relevantly) in his evidence in the Tribunal hearing.

45    The issue then becomes how it could be that the Tribunal reached its conclusion that Mr Free was a fit and proper person notwithstanding its findings concerning Mr Free’s lack of honesty and integrity, noting that the test for fitness and propriety is one of character and reputation in the context where honesty and integrity are critical: see Su v Tax Agents’ Board, South Australia (1982) 61 FLR 1 (Davies J) at 4–5; Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974 (Hill J) at 984.

46    Before the Tribunal, Mr Free did not himself seek to justify any aspect of his conduct (including his untruthful evidence in the Tribunal hearing) by reference to any “sense of grievance”, his “perception” being “impacted by [his] emotions”, the “human dimensions” which “heavily influenced if not clouded [his] response” and that he “considers he has suffered a grievous wrong”: Reasons at [156]–[158], [164]. Nor can these subjective considerations be reconciled with the other serious and significant findings made regarding Mr Free’s lack of integrity and honesty, Mr Free’s deliberate choice as to the extent of his disclosure to the Board, and Mr Free’s ongoing and “concerning” lack of insight. In these circumstances, the Tribunal erred in having regard to these subjective considerations in its determination of whether Mr Free was a fit and proper person to be a registered tax agent having regard to the test referred to above.

47    It follows that, by taking these subjective considerations into account, the Tribunal failed to apply the correct legal test for whether Mr Free was a “fit and proper” person within the meaning of ss 20-15(a) and 20-5(1)(a) of the TAS Act. Accordingly, the answer to the first legal question is “yes”.

48    As for the second ground relied on by the Board, unreasonableness is “a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Hayne, Kiefel and Bell JJ) at [76]. It is not enough to show that another rational decision-maker might have emphatically disagreed with the reasoning process and findings of the Tribunal: SZTDD v Minister for Immigration and Border Protection [2016] FCA 136 (Tracey J) at [35].

49    Although it may be accepted that legal unreasonableness is a difficult ground to establish, there is no logical or intelligible way that the Tribunal could have made the serious findings which it did regarding Mr Free’s lack of integrity and honesty, Mr Free’s deliberate choice as to the extent of his disclosure to the Board, and Mr Free’s ongoing and “concerning” lack of insight, while also forming the ultimate view that Mr Free was a fit and proper person to be registered as a tax agent. There is no rational bridge or intelligible path of reasoning between these findings and the ultimate conclusion.

50    With respect and for the same reasons as given in relation to ground 1, the process of reasoning adopted by the Tribunal is illogical or irrational, and unreasonable in the legal sense.

51    Having particular regard to the Tribunal’s inability to accept that Mr Free gave honest evidence in the hearing before it, there is manifest unreasonableness in the Tribunal’s finding that Mr Free was a fit and proper person to be registered as a tax agent. That is because there is no rational basis on which it could be found that a perceived sense of grievance that Mr Free had against his former employer was sufficient to overcome, justify or mitigate the failure by him to give honest evidence in the Tribunal hearing.

52    It follows that the Tribunal’s finding that Mr Free was a “fit and proper” person within the meaning of ss 20-15(a) and 20-5(1)(a) of the TAS Act, and the consequent finding that termination of registration as a tax agent was “not appropriate”, was unreasonable. Accordingly, the answer to the second legal question is “yes”.

Ground 3

53    Ground 3 concerns whether the Tribunal’s conclusion that Mr Free did not have informal control over MPC was legally unreasonable. It will be recalled that Mr Free’s wife was the sole director and shareholder of MPC since February 2018, being when MPC became the trustee of the SMSF: Reasons at [21].

54    The Tribunal’s key findings relevant to this ground are at [24]–[25], [28]–[29] and [39]–[40] of the Reasons:

In his application for registration as a tax agent submitted on 24 September 2020, the applicant answered “No” to the question:

Do you or any associated entities that you have direct, or indirect control over, have overdue tax obligations?

The applicant accepts that the SMSF had outstanding tax lodgement obligations at that time and that he was aware that those obligations were outstanding when he submitted the application for registration. The applicant’s response to a query by the Board regarding why he answered “No” to the question about overdue tax obligations of associated entities included this statement:

Regarding the non-individual entities mentioned, it is crucial to clarify that at the time of my declaration, I was not a director, nor did I have formal or informal control over either entity.

…

It is important to consider the applicant’s response against the context in which it was given. The question to which the applicant answered “No” was whether he exercised “control” over the fund, albeit “formal or informal” control. It was not, for example, whether the trustee was accustomed to acting in accordance with the applicant’s wishes or some other lesser test than control. The applicant was neither a director nor a shareholder of the trustee company at that time and had not been for well over two years. At the time he made the statement by submitting the form, he was also not a member of the SMSF.

In my view, it is not inherently improbable that a person who is a qualified and experienced accountant might genuinely take the view that he did not “control”, either formally or informally, a trustee company of which he was neither a director nor shareholder and which acted as trustee of a superannuation fund of which he was not a member. I consider that an accountant could at the same time exercise influence over a company of which his wife is the only director and shareholder but hold a genuine belief that he did not in any sense control the company, formally or informally. I accept that the applicant held such a belief.

…

Overall, I am left with the impression that the applicant’s wife largely left accounting and related matters to her husband and the accounting firm but not that the applicant exercised any form of control over her. It could readily be concluded that the applicant’s wife generally acted in accordance with her husband’s advice and left accounting and taxation matters largely in his hands. That is scarcely surprising; the applicant is, after all, a chartered accountant and tax agent charged with responsibility for the SMSF’s accounting and taxation affairs.

However, as already mentioned, that is not the test. I am not persuaded that the applicant informally controlled the trustee company. The applicant’s wife had formal control over trustee company as its sole director. She was also the sole shareholder. She was not altogether ignorant of its affairs. She was not, so far as the evidence reveals, suppressed or otherwise controlled by the applicant.

(Original emphasis omitted, emphasis added, footnotes omitted.)

55    The Board submits that there is a conflict between, on the one hand, the Tribunal’s finding that Mr Free’s wife generally acted in accordance with her husband’s advice and left accounting and taxation matters largely in his hands, and the Tribunal’s finding that Mr Free did not have informal control of MPC. The Board submits that Mr Free’s ability to influence his wife’s decision-making in relation to MPC is the very thing that would indicate an existence of informal control, and that the Tribunal’s conclusion is unreasonable because it does not accord with its own findings.

56    However, the Board’s submission relies upon a mischaracterisation of the Tribunal’s findings. When the impugned statement is read in the context of the Reasons as a whole, it is apparent that the Tribunal found that the extent of Mr Free’s involvement with MPC was to act as its accountant and tax agent, and in that respect, his wife acted in accordance with his advice. Otherwise, the conclusion that Mr Free did not have informal control of MPC is based on identifiable reasoning (some of which is extracted above) and which is, with respect, logical. In this context, the impugned statement is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, which tells against a conclusion of jurisdictional error: see Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 (Wigney J) at [55].

57    For these reasons, the Tribunal’s finding that Mr Free did not exercise informal control over MPC was not legally unreasonable and/or affected by illogical or irrational reasoning. Accordingly, the answer to the third legal question is “no”.

Grounds 4 and 5

58    The parties dealt with grounds 4 and 5 together, and I will do the same.

59    These grounds concern the Tribunal’s application of the provisions under ss 350-10(1) and (4) of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) to certain notices of assessment which were in evidence. It was common ground on this appeal that those notices were copies (not originals) and that they bore the printed name of the Deputy Commissioner of Taxation (not the signature).

60    In the Tribunal, the Board advanced the following as matters (inter alia) which demonstrated that Mr Free was not a “fit and proper” person:

(1)    Mr Free has been found by the ATO on multiple occasions to have failed to comply with taxation laws; and

(2)    Mr Free has demonstrated a comprehensive and persistent failure to comply with his taxation obligations across several years, including the accrual of significant debts, both in respect of his individual tax affairs and those of the Family Trust, exceeding $370,477.02, necessitating the Deputy Commissioner of Taxation to commence proceedings in the District Court of Queensland to recover taxation liabilities.

61    Before the Tribunal, the Board relied upon notices of assessment issued to “The Trustee” of the Family Trust, which notices did not name the trustee: Reasons at [127].

62    The Tribunal’s key findings which are relevant to grounds 4 and 5 are at [142]–[145] of the Reasons:

The applicant’s objections against the Family Trust assessments were made on the basis that OPL as trustee is not liable because there was in fact a beneficiary presently entitled to the income of the Family Trust, namely MPC as trustee for the SMSF. …

As for the Board’s reliance upon the TAA, Sch 1, s 350-10(1), item 2, it is not clear to me that this provision is engaged based on the evidence before the Tribunal. For item 2 to apply, the relevant notice of assessment must be produced before the Tribunal.

What has been produced are copies of the notices of assessment. Original notices have not been produced. Section 350-10(4) of Schedule 1 to the TAA provides that a copy or extract of a document made or given for the purposes of a taxation law, and signed by the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner, is evidence of the matters in the document to the same extent as the original document would have been. No such signed copy or extract was produced in evidence.

Accordingly, it seems to me that the conclusive evidence provisions are not engaged. However, even if they are, I would not accept that that requires me to approach the assessments without regard to the context that the applicant has objected against the assessments. As I have foreshadowed and for the reasons indicated above, this is not a case where the objections are clearly doomed to fail. While I do not rule on what should be the fate of the objections, I do observe and take into account that they contain a rational basis on which the objections could, subject to the ATO’s deliberations and any further information that emerges, be allowed.

63    Item 2 of the table in s 350-10(1) of Sch 1 to the TAA has the effect that production of a notice of assessment is conclusive evidence of the due making of the assessment, and that, other than in a review or appeal relating to the assessment under Part IVC of the TAA, the amounts and particulars in the notices of assessment are correct.

64    Section 350-10(4) of Sch 1 to the TAA provides that:

The production of a document that:

(a)    appears to be a copy of, or extract from, any document (the original document) made or given by or to an entity for the purposes of a *taxation law; and

(b)    is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner;

is evidence of a matter to the same extent as the original document would have been evidence of the matter.

(Emphasis original.)

65    Regulation 24(1) of the Taxation Administration Regulations 2017 (Cth) provides that:

A document bearing the name (however produced) of a person who is, or was at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner in the place of the person’s signature is taken to have been duly signed by the person, unless it is proved that the document was issued without authority.

66    The Board submits that the provisions of the TAA should have been given their full force and effect by the Tribunal, given that the provisions plainly do not require an original notice and that the Tribunal proceeding was not a review under Part IVC of the TAA. It submits that the Tribunal erred in finding that the conclusive evidence provisions are not engaged because original notices of assessment were not produced. It emphasises that there was no dispute about the accuracy of the copies of the notices and nothing inherent in the proceeding before the Tribunal that required originals.

67    The Board also submits that, by reference to reg 24, a typed name of the relevant person along with their position is a “signature” for the purpose of the conclusive evidence provisions unless the document is proved to have been issued without authority (which submission appears to be accepted by Mr Free at footnote 29 of his counsel’s written submissions).

68    With respect, the Board’s submissions are correct, and are accepted. This has the consequence that the Tribunal acted on a wrong principle, and erred in law by determining that the conclusive evidence provision in s 350-10(1) of Schedule 1 to the TAA should not apply. It follows that the answer to the fourth legal question is “yes”.

69    Further, as the Board submits, the Tribunal engaged in reasoning precluded by the plain terms of the conclusive evidence provisions in finding that Mr Free’s objections to the notices of assessment were not doomed to fail, and were not obviously frivolous or without merit: Reasons at [142], [145]. The Tribunal made such findings, even though the Tribunal appeared to accept that it should not be called upon to assess the merits of objections made to assessments: Reasons at [141].

70    The consideration of the subject and content of the objections to the notices of assessment was also an error of law, as it failed to give effect to the conclusive evidence provision in s 350-10(1) of Schedule 1 to the TAA. It follows that the answer to the fifth legal question is “yes”.

71    At [152] of the Reasons, following its consideration of the objections to the notices (although without determining them), the Tribunal found that Mr Free “has failed to comply with taxation laws in multiple respects as outlined above” but that “the degree of non-compliance is not necessarily as stark as the Board’s raw presentation of the proceedings for recovery of the $370,477.02 might suggest, for the reasons set out above”.

72    At [163] of the Reasons, the Tribunal observed “that there has been substantial non-compliance by the applicant with taxation laws” on the basis that the “above matters” were considered “holistically”. At [164] of the Reasons, it was stated that this matter “must be considered in the context I have outlined above”.

73    This reasoning, and intermediary findings, are necessarily based on the Tribunal’s assessment, at least in part, of the reasonableness or prospects of the objections to the notices of assessment, being one of the matters considered by it to reach the ultimate finding at [166] of the Reasons that Mr Free is a fit and proper person to be a tax agent.

74    It follows that, contrary to Mr Free’s submissions, I am unable to conclude that the errors of law identified in grounds 4 and 5 are not determinative. This means that, even had grounds 1 and 2 not been upheld, I would have granted the relief sought by the Board in any event.

Conclusion

75    For these reasons, the appeal will be allowed, and orders will be made as sought by the Board.

Associate:

Dated:    17 August 2026