Fit and proper

To be eligible for registration an applicant must satisfy a fit and proper person requirement. The fit and proper person requirement applies to:

  • individual applicants
  • each partner and director in respect of partnership and company applicants.

In deciding whether an individual is a fit and proper person, we must consider:

  • whether the individual is of good fame, integrity and character
  • whether any of the following events have occurred during the previous five years:
    • the individual has been convicted of a serious taxation offence
    • the individual has been convicted of an offence involving fraud or dishonesty
    • the individual has been penalised for being a promoter of a tax exploitation scheme
    • the individual has been penalised for implementing a scheme that has been promoted on the basis of conformity with a product ruling in a way that is materially different from that described in the product ruling
    • the individual has had the status of an undischarged bankrupt
    • the individual has been sentenced to a term of imprisonment, or served a term of imprisonment in whole or in part.

If a registered tax agent, BAS agent or tax (financial) adviser ceases to meet the fit and proper person requirement, we may decide to terminate their registration.


A serious taxation offence

A ‘serious taxation offence’ is:

(i) an offence against any one of the following specified offences in the Criminal Code if the offence relates to a tax liability within the meaning of the Taxation Administration Act 1953:

  • section 134.1 of the Criminal Code (obtaining property by deception)
  • section 134.2 of the Criminal Code (obtaining a financial advantage by deception)
  • section 135.1 of the Criminal Code (general dishonesty with respect to obtaining a gain, causing a loss or influencing a Commonwealth public official)
  • section 135.2 of the Criminal Code (obtaining a financial advantage)
  • section 135.4 of the Criminal Code (conspiracy to defraud with respect to obtaining a gain, causing a loss or influencing a Commonwealth public official), or

(ii) a ‘taxation offence’ that is punishable on conviction by a fine exceeding 40 penalty units, or imprisonment, or both.

Note: 1 penalty unit = $180.

‘Taxation offence’ means:

  • an offence against a taxation law
  • an offence against
    • section 6 of the Crimes Act 1914 (being an accessory after the fact)
    • section 11.1 of the Criminal Code (attempting to commit an offence)
    • section 11.4 of the Criminal Code (incitement to the commission of an offence)
    • section 11.5 of the Criminal Code (conspiring with another person to commit an offence)
    being an offence that relates to an offence against a taxation law.

An offence involving fraud or dishonesty

‘Fraud’ and ‘dishonesty’ take their ordinary meaning, and are determined by reference to community standards.

The Criminal Code defines ‘dishonest’ as dishonest according to the standards of ordinary people in circumstances where the defendant is aware of these standards.

Example
Patricia was convicted of theft and was fined $1,500. To convict an individual for theft, a court must find that the individual has dishonestly appropriated property belonging to another with the intention of permanently depriving the other person of the property. Consequently, theft is an offence of dishonesty and we must consider this in determining whether Patricia satisfies the fit and proper person test for registration.


Penalised for being a promoter of a tax exploitation scheme

An individual is considered to have been penalised for being a promoter of a tax exploitation scheme if that individual has been ordered to pay a civil penalty for engaging in conduct that results in that individual, or another entity, being a promoter of a tax exploitation scheme, within the meaning of Division 290 of Schedule 1 to the Taxation Administration Act 1953.


Penalised for implementing a scheme that has been promoted on the basis of conformity with a product ruling in a way that is materially different from that described in the product ruling

An individual is considered to have been penalised for implementing a scheme that has been promoted on the basis of conformity with a product ruling in a way that is materially different from that described in the product ruling if that individual has been ordered to pay a civil penalty for engaging in such conduct as defined within Division 290 of Schedule 1 to the Taxation Administration Act 1953.


Undischarged bankrupt

An undischarged bankrupt is an individual who has been declared bankrupt under the Bankruptcy Act 1966 and has not been discharged from the bankruptcy.

Example
Seven years ago, William became bankrupt and was not discharged until three years ago. Although William became bankrupt more than five years ago, having the status of an undischarged bankrupt at any time during the past five years is a factor we must consider in deciding whether William is a fit and proper person for registration purposes.


Served or sentenced to a term of imprisonment

An individual has served a term of imprisonment if that individual has served all or part of a term of imprisonment.

An individual has been sentenced to a term of imprisonment if a sentence is imposed on that individual in relation to an offence and that sentence includes a term of imprisonment.

Example
Three years ago, Melissa was convicted of dangerous driving causing serious injury under section 319 of the Crimes Act 1958 (Vic) and received a two-year suspended prison sentence. Being sentenced to a term of imprisonment in the previous five years is an event we must consider in deciding whether Melissa is a fit and proper person for registration purposes.


Further information

For more information, refer to the Explanatory paper TPB(EP) 02/2010 Fit and proper person.


Last modified: 7 September 2015