Explanatory Paper

TPB 01/2010

Code of Professional Conduct

This explanatory paper is also available as a PDF, download TPB (EP) 01/2010: Code of professional conduct (2.26MB).

This is a Tax Practitioners Board (Board) explanatory paper (TPB(EP)). It is intended as information only. It provides a detailed explanation of the Board’s interpretation of the Code of Professional Conduct (Code) contained in Division 30 of the Tax Agent Services Act 2009 (TASA), translating the provisions into practical principles that can be applied by the profession.

This TPB(EP) is designed to assist tax practitioners, the relevant institutions, professional associations, potential registrants and the wider community to understand the factors that provide the basis for the Board’s approach to the application of the TASA.

The principles, explanations and examples in this paper do not constitute legal advice and do not create additional legal obligations beyond those that are contained in the TASA.

Document history

The Board released this TPB(EP) in the form of an information sheet as an exposure draft on 7 April 2010. The Board invited comments and submissions in relation to the information contained in it. The closing date for submissions was 6 June 2010. The Board has considered the submissions made and now publishes the following TPB(EP).

Issued: 16 December 2010

Last modified: 30 October 2014

 

Purpose of explanatory paper


  1. This explanatory paper is designed to provide assistance and explanation of general principles and matters relating to the Code of Professional Conduct (Code) that may be relevant to the professional practice of tax agents and Business Activity Statement (BAS) agents. The explanatory paper will also be relevant to the Tax Practitioners Board’s (Board) powers to take certain actions under the Tax Agent Services Act 2009 (TASA).

  2. 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. The Code was created to assist in achieving this objective.

  3. The Code is legislated and sets out the professional and ethical standards that registered agents are required to comply with. It outlines the duties that agents owe to their clients, the Board and other agents.

  4. This explanatory paper however, does not have the force of law and provides information and interpretative guidance only. Therefore, it is not intended to determine or exhaust the positions or actions which may be taken by the Board in particular cases. Rather, this explanatory paper provides a decision making tool that may be referred to by the Board when considering Code of Conduct matters. It is also intended to assist agents in providing tax agent or BAS services.

  5. This paper provides the Board’s view in relation to the meaning of the Code provisions. This paper does not create additional legal obligations beyond those which are contained in the TASA. In particular, a finding by the Board that an agent has breached the Code does not itself give rise to a civil action against an agent by their client. Whether or not such an action arises is a matter for the client to determine in accordance with the general law.

  6. In applying the Code to particular circumstances, the Board has an obligation to ensure that its decisions are soundly based and do not constitute an improper use of the Board’s powers under the TASA. This obligation generally requires the Board to observe the rules of natural justice when making a decision, ensure that there is enough evidence or other material to justify a decision, exercise its power having regard to any relevant considerations and have regard to the individual merits of a particular case when exercising a discretionary power. In addition, the Board must exercise its powers in a manner that is not unreasonable.

  7. The principles outlined and the case examples contained in this explanatory paper provide examples of how the concepts relevant to the principles of the Code have been applied in different contexts (primarily by the former State based Tax Agents’ Boards). In this regard, the cases will remain useful and are instructive to the application of the TASA. The cases are intended to act as a guide to the meaning and application of the principles in the Code.

  8. Registered tax agents and BAS agents that are members of professional bodies may have professional and ethical obligations imposed on them as members of those bodies.[1]

  9. While other codes may present similar duties and requirements, the duties created by the TASA are, where applicable, required to be complied with in addition to these other obligations.

 

Professional conduct of tax agents and BAS agents


  1. The term ‘professional conduct’ refers to the way in which tax agents and BAS agents act while in their professional capacity. When providing services, it is expected that agents will display an appropriate, professional standard of behaviour beyond that which is expected of someone who is not acting in a professional capacity.

  2. The Board has a range of options available to it under the TASA in making findings about the conduct of tax agents and BAS agents. The options open to the Board include:

    • imposing sanctions for breach of the Code
    • applying for a civil penalty for breach of the civil penalty provisions
    • terminating an agent’s registration on the basis that the agent is no longer a fit and proper person to be a tax agent or BAS agent.

Code of Conduct Provisions


  1. The provisions of the Code are contained in section 30-10 of the TASA.

  2. The Code establishes a set of ethical and professional standards to be observed by tax agents and BAS agents. These provisions apply only to conduct which occurs after the commencement of the TASA on 1 March 2010.

  3. The Board may commence an investigation to determine whether there has, in fact, been a breach of the Code.[2] If the Board is satisfied, following an investigation, that there has been a breach of the Code, it may apply one or more of the sanctions set out in section 30-15 of the TASA.

  4. For further details of the administrative sanctions that may be applied for a breach of the Code, refer to the section of this explanatory paper titled ‘What are the consequences if a tax agent or BAS agent fails to comply with the Code?’

Civil Penalty Provisions


  1. A civil penalty is a pecuniary penalty that is imposed by a court exercising civil rather than criminal jurisdiction. State and Commonwealth government bodies can apply to the courts to have a pecuniary penalty imposed against an individual for breaching a civil penalty provision in some circumstances. Unlike criminal penalties, civil penalties do not include criminal convictions or imprisonment.

  2. While the Code applies only to registered agents, the civil penalty provisions apply to unregistered persons or entities in addition to registered tax agents and BAS agents.[3]

  3. The civil penalty provisions will only be able to be applied in relation to behaviour which occurs after commencement of the TASA on 1 March 2010.

  4. If there is a breach of any of these civil penalty provisions, the Board has the option of applying to the Federal Court of Australia (Federal Court) for a civil penalty order to be granted against the tax agent or BAS agent.[4]

  5. The Board also has the option of applying to the Federal Court for an injunction.[5] An injunction is a court order that requires a person to do, or refrain from doing, something. If an agent fails to comply with the terms of an injunction as specified in the court order, the agent may be guilty of contempt of court.

  6. The Board may apply for an injunction as an alternative to seeking a civil penalty (in the case of a permanent injunction) or in combination with a civil penalty application (in the case of an interim injunction). An interim injunction will remain operative until the Federal Court makes its final determination.

Termination of registration


  1. The Board may terminate the registration of a tax agent or BAS agent if the Board is satisfied that a tax agent or BAS agent no longer meets the ‘fit and proper person’ requirement for registration.

  2. In determining whether a tax agent or BAS agent is a fit and proper person, the Board can examine the agent’s previous conduct. The Board may consider actions or omissions that occurred prior to 1 March 2010 to the extent that the behaviour is relevant to the agent’s present fitness and propriety.

Application of the TASA


  1. Some conduct by a tax agent or BAS agent that is covered by the civil penalty provisions could equally constitute a breach of the Code. Examples of this conduct may include:

    • signing false declarations
    • making false or misleading statements,
    • employing or using the services of a de-registered entity.

 

What is the Code of Professional Conduct?


  1. Section 30-10 of the TASA establishes the legislated Code for registered tax agents and BAS agents. The Code sets out the professional and ethical standards required of tax agents and BAS agents. This section also outlines the duties that agents owe their clients, the Board and other agents.

  2. The Code consists of a list of core principles which are grouped into five categories:

    • Honesty and integrity
    • Independence
    • Confidentiality
    • Competence
    • Other responsibilities.

 

Who does the Code apply to?


  1. The Code applies to all registered tax agents and BAS agents.[6]

 

What are the principles of the Code?


  1. Section 30-10 of the TASA contains the Code consisting of the following 14 principles:

  2. Honesty and integrity


    (1) You must act honestly and with integrity.

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

    (3) If:

    (a)   you receive money or other property from or on behalf of a client, and
    (b)  you hold the money or other property on trust.

    you must account to your client for the money or other property.


    Independence


    (4)You must act lawfully in the best interests of your client.

    (5)You must have in place adequate arrangements for the management of conflicts of interest that may arise in relation to the activities that you undertake in the capacity of a registered tax agent or BAS agent.


    Confidentiality


    (6) Unless you have a legal duty to do so, you must not disclose any information relating to a client’s affairs to a third party without your client’s permission.


    Competence


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

    (8) You must maintain knowledge and skills relevant to the tax agent services that you provide.

    (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 a 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.


    Other responsibilities


    (11) You must not knowingly obstruct the proper administration of the taxation laws.

    (12) You must advise your client of the client’s rights and obligations under the taxation laws that are materially related to the tax agent services you provide.

    (13) You must maintain the professional indemnity insurance that the Board requires you to maintain.

    (14) You must respond to requests and directions from the Board in a timely, responsible and reasonable manner.

 

(1) You must act honestly and with integrity

What is ‘acting honestly and with integrity’?


  1. Honesty and integrity are terms which have their ordinary meanings.

  2. The Macquarie Dictionary[7] defines each of the terms as follows:

  3. Honesty

    1 the quality or fact of being honest; uprightness, probity or integrity

    2 truthfulness, sincerity or frankness

    3. freedom from deceit or fraud


    Integrity

    soundness of moral principle and character; uprightness, honesty

     


  1. The principles of honesty and integrity impose an obligation on a person to ensure:
    • straightforwardness,
    • fair dealing,
    • a commitment not to mislead or deceive
    • truthfulness.[8]

  1. The terms ‘honesty’ and ‘integrity’ are not defined in the TASA. Guidance can therefore be obtained from decisions of the courts. The following considerations have been used by the courts in determining when a person is acting with honesty and integrity:

    • has the person acted with good morals and without depravity?[9]

    • has the person acted properly and without deceit?[10]

    • has the person acted without intent to gain an improper benefit or advantage for himself, herself or for another?[11]

    • has the person acted with such carelessness as to demonstrate that no genuine attempt has been made to carry out the duties and obligations imposed on him or her by law?[12]

    • is the person of such integrity that others may entrust their taxation affairs to that person’s care?[13]

    • is the person of such reputation and ability that officers of the ATO may assume that taxation returns lodged by the agent have been prepared by the agent honestly?[14]

    • has the person, through their behaviour, displayed an inadequate sense of their obligations as a tax agent and/or an evident reluctance to ascertain and comply with those obligations?[15]

    • has the person failed to make full disclosure of a matter in circumstances where that matter is relevant in assessing the suitability of that person to be registered, such as in the case of tax agents or legal practitioners?[16]

    • does the person have a sufficient understanding of what is right and what is wrong so that they can be relied on to carry out their role or function as a tax agent or BAS agent?[17]

    • the making of a false representation has also been held to be inconsistent with the integrity required for registration as a tax agent.[18]

 c;

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


What does ‘taxation laws’ mean?


  1. The term ‘taxation law’ under the Code means:

    • (a) any Act of which the Commissioner of Taxation has the general administration (including any part of an Act to the extent to which the Commissioner has the general administration of the Act);
      (b) any regulations under the Acts in paragraph (a) above; and
      (c) the Tax Agent Services Act 2009 and the regulations made under that Act.’[19]

  1. The Commissioner of Taxation is responsible for the administration of a number of Acts and regulations concerning, among other things:

    • income tax
    • indirect taxes (including GST, luxury car tax, wine equalisation tax)
    • superannuation
    • the Medicare levy
    • fringe benefits tax
    • franking tax
    • withholding taxes
    • petroleum resource rent tax
    • the administration or collection of the above taxes.

What does ‘personal affairs’ mean?


  1. The term ‘personal affairs’ refers to a tax agent’s or BAS agent’s personal taxation obligations, including timely lodgement of personal income tax returns and activity statements, payment of superannuation guarantee contributions and PAYG withholding and instalment payments.[20]

  2. In the case of a company or partnership tax agent or BAS agent, the taxation obligations of the company or partnership mean the personal affairs of the company or partnership tax agent or BAS agent.

  3. ‘Personal affairs’ also includes the affairs of the tax agent or BAS agent practice, for example, the agent’s duties and obligations with regard to maintaining tax agent or BAS agent registration.[21]

  4. In particular, a partnership or company agent must ensure that at all times there is a sufficient number of individuals, being registered tax agents (in the case of a tax agent) or registered tax agents or BAS agents (in the case of a BAS agent) to provide tax agent or BAS services to a competent standard and to carry out supervisory arrangements.

  5. In other words, the agent must have enough registered individuals:

    • to ensure services are provided competently
    • to exercise supervision over the services provided.

When is a registered tax agent or BAS agent complying with the taxation laws, in the conduct of their personal affairs?


  1. Some of the factors that may be considered in deciding whether a tax agent or BAS agent has complied with the taxation laws in their personal affairs are:

    • whether the tax agent or BAS agent has properly complied with their personal taxation obligations, including the timely lodgement of the agent’s personal income tax returns and activity statements[22]

    • whether the tax agent or BAS agent has properly complied with the taxation obligations of the tax agent or BAS agent practice.[23] This requires that the agent ensure timely performance of the agent’s obligations concerning the maintenance of tax agent or BAS agent registration and communications with the Board

    • whether the agent has taken reasonable care in interpreting the law as it applies to their personal tax affairs.[24]

 

(3) You must account for money or other property you receive on trust from or on behalf of your clients


What does ‘account’ mean?


  1. The Macquarie Dictionary[25] defines ‘account’ in this context, as follows:

  2. ‘Account

    14. To render an account, especially of money

    17. Account for , a. to give an explanation of…’


Under what circumstances will a registered tax agent or BAS agent hold money, received from or on behalf of a client, ‘on trust’?


  1. Where money or other property has been received by a tax agent or BAS agent from a client, in circumstances that indicate the money or other property was to be held on behalf of the client and/or applied for some specific purpose and in accordance with certain terms, that money or other property may be held on trust for the benefit of the client.[26]

  2. Examples of money received on trust may include, but are not limited to, the following:

    • subject to the terms of a retainer, money held or received in advance by the agent for the purpose of settling or meeting liabilities
    • client tax refunds
    • money paid to the agent for the purpose of seeking specialist advice.

What is a registered tax agent or BAS agent required to do to account for money received from or on behalf of a client on trust?


  1. To comply with this requirement of the Code, a tax agent or BAS agent is required to keep money or other property which the agent holds on trust for the client separate from the agent’s personal money or other property.

  2. There is no Australia-wide scheme of legislation requiring tax agents or BAS agents to hold separate trust accounts. Some professional bodies have promulgated rules about how members are to deal with client funds but these are not industry-wide.[27]

  3. The Board notes that the trust accounting arrangements, outlined in the Code of Ethics for Professional Accountants, while not binding on all tax agents and BAS agents, may provide some guidance on adequate arrangements that could be adopted by tax agents and BAS agents. Measures that the agent must adopt to ensure compliance with the Code include, but are not limited to:

    • keeping money and other property held on trust separate from the agent’s personal or business assets

    • only applying the money or other property the agent holds on trust to the purpose for which it was intended and for which the agent has authority to do so

    • maintaining records of account such that the agent can account to entitled persons, on demand, for any money or other property held on trust

    • complying with all laws and regulations relating to the custody and accounting for such assets, and/ or

    • only disbursing money or other property held on trust in accordance with express client instructions or as required by operation of law.[28]

 

(4) You must act lawfully in the best interests of your client


What does acting ‘in the best interests of your clients’ mean?


  1. Acting ‘in the best interests of your client’ has been held to mean acting in a representative character in the exercise of the agent’s responsibility to the client.[29] This requires an agent to advance and protect their client’s interests to the best of their ability, in all circumstances.

  2. An act or omission by a tax agent or BAS agent which is inconsistent with the obligation imposed by the Code will be in breach of this provision of the Code.

  3. This duty is similar to the fiduciary duties owed by other professional advisors to clients, and is necessarily limited or circumscribed by the scope of the engagement between the agent and the client.[30]

  4. While the Code of Conduct does not create a fiduciary duty between an agent and their client, in considering the meaning of ‘acting in the best interests of your client’, the Board considers that the nature of the duty between an agent and their client is similar to that between lawyers and their clients or other professional services providers and their clients and therefore the interpretation of these duties will provide an indication of how this obligation should be applied in the context of tax agents and BAS agents.

  5. Given this, the following discussion of fiduciary duties should not be interpreted as meaning that the Code creates such a duty but rather the nature of these duties and what has been considered breaches of the duties will guide the Board in determining whether an agent has breached this Code obligation.

  6. Fiduciary duties generally require a person to act in good faith for the benefit of another and to avoid situations where their personal interests conflict with that duty.[31]

  7. Some relationships are automatically considered to be a ‘fiduciary relationship’, for example the relationship between a solicitor and their client. The relationship between a tax agent or BAS agent and their client is not one of these relationships. However, despite this, tax agents and BAS agents are required by the Code to act in the best interest of the client.

  8. The nature of the relationship between a client and their agent will be determined by reference to the circumstances of the case, the circumstances of the relationship, the terms of the engagement and the position of the client.

  9. The relationship between an agent and client is not wholly contained within the contract between the agent and the client. This is because the Code creates positive obligations that agents must comply with in providing tax agent services to their clients. Therefore the duties owed by the agent to the client are not wholly contractual.

  10. Characteristics of the relationship between an agent and their client that may be relevant to determining the scope of the duty are:

    • the existence of ‘a relationship of confidence’[32] and the agent’s duty to maintain client confidence (principle 6 of the Code)[33]

    • an undertaking by the tax agent or BAS agent to perform a task or fulfil a duty in the interests of the client [34]

    • dependency or vulnerability on the part of the client that causes them to rely on the tax agent or BAS agent for the taxation services provided by that agent[35]

    • a reasonable expectation that the tax agent or BAS agent will act in the client’s best interests.[36] While this duty may already exist under the common law, it also arises under a provision of the Code

    • the objectives of the TASA[37], which are to ensure that tax agent or BAS services are provided to the public in accordance with appropriate standards of professional and ethical conduct, and the Code prescribed under the TASA to achieve this purpose.[38]


  1. This duty is designed to prevent tax agents or BAS agents from being influenced by personal and other interests when acting for clients and to prevent an agent from actually misusing the agent’s position for the agent’s personal advantage.[39]

  2. The extent of the duty owed by the tax agent or BAS agent to the client is determined from the character of the relationship between the agent and the client.

  3. The duty can be determined from the circumstances of the engagement, for example by a letter of engagement, report, advice or other communication between the agent and the client, the duties imposed by the TASA and any relevant course of conduct between the agent and the client.[40]

  4. These duties impose the following obligations on the tax agents and BAS agents who owe them:

    • a duty not to promote the agent’s personal interest by making or pursuing a gain in circumstances in which there is a conflict or a real and substantial possibility of a conflict between the agent’s personal interests and those of the persons whom the agent is bound to protect[41]

    • a duty not to use the agent’s position to make a personal profit or gain unless authorised to do so by the agent’s client and to account to the client for any such unauthorised profit or gain.[42] Accounting for any unauthorised gain will not operate as an excuse for the initial breach that gave rise to the gain.


What does acting ‘lawfully’ in the best interests of your client mean?


  1. Acting ‘lawfully’ in the best interests of a client requires a tax agent or BAS agent to act in a client’s best interest but only to the extent that their actions are consistent with the law. That is, ‘acting in the best interests of clients’, is not a justification for a tax agent or BAS agent to contravene or disregard the law.

  2. Example

    Michael works in the hospitality industry. He engages Rahul, a registered tax agent, to prepare and lodge his income tax return. He instructs Rahul to claim a deduction for work clothing for the black trousers he is required to wear. Although Michael might believe it is in his best interest to reduce his taxable income, Rahul is aware that Michael cannot claim the cost of his work clothing as an allowable deduction because the trousers are not protective or specific to his occupation. Rahul advises Michael accordingly and must not act in accordance with Michael’s instruction.[43]


  1. When acting for, or on behalf of, a client, the tax agent or BAS agent must only act where they are authorised to do so and if their actions are in accordance with or are sanctioned by the law.

  2. There may also be examples of where the law overrides the duty of a tax agent or BAS agent to their client. For example, providing information or documents to the ATO following a notice pursuant to section 264 of the Income Tax Assessment Act 1936 (ITAA 1936).[44] Another example may include providing information pursuant to a court order.

 

(5) You must have in place adequate arrangements for the management of conflicts of interest that may arise in relation to the activities that you undertake in the capacity of a registered tax agent or BAS agent


When will a conflict of interest arise?


  1. Tax agents and BAS agents must ensure adequate arrangements are in place to manage any conflicts of interest that may arise, wholly or partially, in relation to the provision of tax agent services.[45]

  2. Essentially a conflict of interest will arise where the agent has a personal interest or has a duty to another person which is in conflict with the duty owed to a client. A conflict of interest may be an actual or perceived conflict and can arise before the agent accepts an engagement or at any time during the engagement.

  3. A perceived conflict arises where there is a perception, by others, that the service or benefit will not be provided fairly or impartially. Tax agents and BAS agents have a duty to manage both actual and perceived conflicts of interests.
  4. Examples of where a conflict of interest can arise include, but are not limited to:

    • where the agent acts for both clients in a matter e.g. a husband and wife experiencing matrimonial issues. This may be both an actual conflict, in that the interests of each client conflict, and/or a perceived conflict, in that one of the clients believes that the agent is not providing, or may not provide, services fairly or impartially to him or her
    • where an agent’s personal interest is involved, e.g. where an agent is providing taxation advice in relation to the treatment of a particular transaction and the agent will or may benefit from the transaction occurring or not occurring, and
    • where an agent acts against a client, or a former client, having previously acted for that client in a related matter.

What are ‘adequate arrangements for the management of conflicts of interest’?


  1. The adequacy of a tax agent’s or BAS agent’s conflict management arrangements will depend upon:

    • the nature, scale and complexity of the agent’s business
    • the nature of the services provided by the agent
    • any information the agent obtains that is relevant to the actual or potential conflict of interest.[46]

  1. In addition to generally anticipating potential conflict situations before they arise, three mechanisms that tax agents or BAS agents may use to manage conflicts of interest are:

    • controlling conflicts of interest
    • avoiding conflicts of interest
    • disclosing conflicts of interest.[47]

  1. Further, where a conflict arises or is likely to arise before an engagement commences or tax agent services are provided, the tax agent or BAS agent will need to determine the appropriate course of action to deal with the conflict before the engagement commences.

  2. Whilst many conflicts of interest can be managed by a combination of internal controls and disclosures, some conflicts cannot be managed in these ways and in such cases the agent should avoid the conflict or refrain from providing tax agent services in those circumstances.

Controlling conflicts of interest


  1. To control conflicts of interest, a tax agent or BAS agent should:

    • identify the conflicts of interest relating to the tax agent or BAS agent practice
    • assess and evaluate those conflicts
    • decide upon, and implement, an appropriate response to those conflicts.[48]

Avoiding conflicts of interest


  1. In some circumstances, regardless of the arrangements put in place, the agent will not be able to adequately manage the conflict of interest and therefore should not perform the services for the client.[49]

  2. Again, the agent should have regard to the factors listed above concerning the adequacy of conflict management arrangements in determining whether, in all the circumstances, the agent will be able to manage the conflict.

Disclosing conflicts of interest


  1. Disclosure about conflicts of interest should:

    • be timely, obvious, specific and meaningful to the client
    • occur before or when the tax agent service is provided, but in any case, at a time that allows the client a reasonable time to assess its effect
    • refer to the specific service to which the conflict relates.[50]

  1. Examples of adequate and effective conflict management arrangements may include, but are not limited to, the following:

    • continuous disclosure of any conflicts

    • informed written consent of the client or clients involved in the conflict of interest, specifically authorising disclosure of the conflict of interest to the other parties involved in the conflict. This may be in the form of a signed waiver or other authorisation, and/or

    • maintenance of appropriate records and documentation detailing the conflict management policies and procedures of an agent and recording what action has been taken in relation to any conflicts of interest

    • ‘ethical walls’ – a form of physical and intellectual separation between the management of the affairs of the clients involved in an actual or potential conflict of interest. This may include:

      • the physical separation of various departments in order to insulate them from each other

      • an ongoing educational programme to emphasise the importance of not improperly or inadvertently breaching duties to a client

      • strict and carefully defined procedures for dealing with situations where it is considered that action may need to be taken to avoid a risk of a breach of duty, in addition to the maintenance of proper records when this action is taken

      • monitoring of compliance with the procedures

      • disciplinary sanctions where there has been a breach of any internal procedures.[51]


  1. For such measures to be effectively implemented, these should be established as a systemic part of the tax agent or BAS agent practice in relation to situations giving rise to potential conflicts of interest.[52]

 

(6) Unless you have a legal duty to do so, you must not disclose any information relating to a client’s affairs to a third party


  1. Subject to paragraph 91 of this Explanatory Paper, this provision of the Code imposes a duty on tax agents and BAS agents to not disclose any information held by the tax agent or BAS agent concerning the client’s affairs to third parties.

  2. In the absence of client authorisation or a legal duty to disclose, any disclosure of information relating to the affairs of a client will be a breach of this provision of the Code. This would include disclosure of client information to an offshore entity engaged by a tax agent or BAS agent to provide certain services to the agent. Where relevant information is to be disclosed to offshore or onshore entities by a tax agent or BAS agent, an agent should obtain client permission, such as in a letter of engagement, report, advice or other communication with the client.

  3. A tax agent or BAS agent may be liable for any unauthorised disclosure of client information held by the agent and may be subject to sanction under the TASA.[53]

  4. In addition to this principle, the Privacy Act 1988 sets out a number of National Privacy Principles (NPPs) which govern the collection, use, storage and disclosure of personal information and other conduct by organisations.[54] The Privacy Act 1988 requires that organisations which are subject to the NPPs, observe these standards.

  5. Tax agents and BAS agents should seek their own advice about whether the provisions of the Privacy Act 1988 apply to them. Whether or not a tax agent or BAS agent is legally required to comply with the NPPs, they should be regarded as a benchmark for good information handling procedures that may be appropriately adapted depending on the particular circumstances of the agent.

What is ‘information relating to a client’s affairs’?


  1. The phrase ‘information relating to a client’s affairs’ is not defined in the TASA. Therefore, this phrase should be interpreted consistently with the ordinary meanings of the words contained in the phrase.

  2. The Macquarie Dictionary[55] provides the following definitions in relation to this phrase:

  3. ‘Relate…

    3. to have reference (to)

    4. to have some relation (to)

    Affair

    1. Anything done or to be done; that which requires action or effort; business; concern

    2. (plural) matters of interest or concern; particular doings or interest;

    4. thing, matter

    5. a private or personal concern; a special function, business or duty’


  1. In this context, the phrase ‘information relating to a client’s affairs’ means information in ‘relation, connection, reference or regard’ to the ‘activities, business or concerns’ of the tax agent’s or BAS agent’s client.[56]

  2. The terms of this provision of the Code do not require that the information relating to the client’s affairs actually be provided to the tax agent or BAS agent by the client themselves.

  3. To be protected under this principle, it is only necessary that the information relates to the affairs of a client.[57]

  4. When employment changes or a new client is engaged, the tax agent or BAS agent is entitled to use prior professional experience to assist a client. However, the tax agent or BAS agent should not use or disclose any confidential information either acquired or received as a result of a professional or business relationship.[58] The tax agent’s or BAS agent’s duty not to disclose any information relating to a client’s affairs continues beyond the term of the engagement with the client.[59]

What is the meaning of ‘third party’?


  1. A ‘third party’ is any person other than the client to whom the information relates.[60]

  2. A third party may be situated within or outside the firm or organisation that employs the tax agent or BAS agent.

Under what circumstances can a tax agent or BAS agent disclose information relating to a client’s affairs?


  1. A tax agent or BAS agent may disclose information relating to a client’s affairs to a third party, only if:

    • disclosure is authorised by the client, or
    • there is a legal duty to disclose.[61]

  1. Examples of where there is a legal duty to disclose information relating to a client’s affairs include:

    • providing information to the Tax Practitioners Board under a notice issued pursuant to section 60-100 of the TASA

    • providing information to a court or tribunal pursuant to a direction, order, or other court process, to provide that information

    • providing information or documents to the ATO under a notice pursuant to section 264 of the Income Tax Assessment Act 1936 (ITAA 1936).[62] This requirement is subject to that material being properly withheld by the tax agent or BAS agent under legal professional privilege

    • providing information or documents to the ATO pursuant to section 353-10 of Schedule 1 to the Taxation Administration Act 1953 concerning indirect taxation laws (including GST).

 

(7) You must ensure that a tax agent service provided on your behalf is provided competently


What does ‘competently’ mean?


  1. A tax agent or BAS agent should be a person of such competence and integrity that others may entrust their taxation affairs to the agent’s care. The agent should be a person of such reputation and ability that officers of the Commissioner of Taxation may proceed upon the footing that the taxation returns lodged by the agent have been prepared honestly and competently.[63]

  2. The Macquarie Dictionary[64] provides the following definition of ‘competent’:

  3. ‘Competent

    1. properly qualified; capable;

    2. fitting, suitable, or sufficient for the purpose; adequate’


  1. Competence, with respect to tax agents and BAS agents, can therefore be defined as a state of being capable, fitting, suitable or sufficient to provide a tax agent service.

  2. A tax agent or BAS agent will be competent if the agent possesses such skill, ability and knowledge required to perform a tax agent service that clients may entrust their taxation affairs to the agent’s care and officers of the ATO may rely upon client returns or other documents prepared by the agent.[65]

  3. The maintenance of competence by a tax agent or BAS agent requires a continuing awareness and understanding of technical, legal and business developments relevant to the tax agent services provided by the agent.[66]

  4. The assurance of competence by a tax agent or BAS agent, in the provision of a tax agent service, requires the agent:

    • to act diligently in accordance with applicable technical and professional standards when providing a tax agent service[67]
    • to maintain knowledge and skills at the level required to ensure that a client is provided with an appropriate standard of tax agent services,[68]
    • to exercise reasonable care in the provision of a tax agent service.[69]

  1. The Macquarie Dictionary[70] provides the following definition of ‘diligent’:

  2. ‘Diligent’

    1. constant and persistent in an effort to accomplish something;

    2. pursued with persevering attention’


  1. Acting diligently requires a tax agent or BAS agent to act in accordance with the terms of the client engagement carefully, thoroughly and on a timely basis.[71]

  2. Circumstances that suggest a lack of competence include, but are not limited to:

    • providing tax agent services relating to an area of the taxation laws in which the tax agent or BAS agent is not properly qualified, capable or suitable, without first obtaining the necessary support of a third party expert[72]
    • not providing clients with a means of communicating with the agent or otherwise remaining inaccessible to clients[73]
    • causing inappropriate delay in the lodgement of client tax returns and other documents[74]
    • causing inappropriate delay in forwarding on client tax refunds from the ATO[75]
    • performance of work of a quality such that it needs to be redone[76]
    • failing to lodge the tax agent’s or BAS agent’s own income tax returns or otherwise failing to adequately manage the tax agent’s or BAS agent’s personal taxation affairs or those of the tax agent or BAS agent practice.[77]

What is a tax agent or BAS agent required to do to ensure that services are provided competently?


  1. There are a number of steps a tax agent or BAS agent may take to ensure that tax agent services are provided competently. These include, but are not limited to:

    • maintaining adequate knowledge, skill and resources in the area/s the agent provides services
    • not accepting an engagement or providing services where the agent has insufficient knowledge and skill to complete the engagement or provide those services competently unless the agent is able obtain such knowledge and skill, without delay and cost to the client
    • not accepting an engagement or providing services where this would breach a condition that has been imposed on the agent’s registration.[78]

  1. If a tax agent or BAS agent has only a narrow, specialised area of expertise, this requirement would require that the provision of tax agent services outside of this area of expertise only occur where the agent has taken steps to obtain necessary knowledge and skills.[79]

  2. To ensure competent provision of services, actions a tax agent or BAS agent can take may include, but are not limited to:

    • setting out and agreeing in a letter of engagement with the client the scope and cost of the services to be provided to clearly outline what services are to be performed as part of the engagement based on the needs of the client and the skills, qualification and experience of the agent
    • obtaining expert advice and assistance
    • obtaining knowledge and skill through private study and research
    • informing the client of the likely delay and cost to acquire the requisite knowledge and skill to provide the service competently and obtaining the client’s voluntary consent to the tax agent or BAS agent providing the service.[80]

What measures can a tax agent or BAS agent adopt to ensure that a tax agent service provided on their behalf is provided competently?


  1. A tax agent or BAS agent is accountable for a tax agent service that is provided on the agent’s behalf.

  2. In the case of an individual tax agent or BAS agent, an individual working under the supervision and control of that agent is permitted to provide relevant tax agent services on behalf of that tax agent or BAS agent. In the case of a company or partnership tax agent, an individual working under the supervision and control of a registered tax agent who is an individual is permitted to provide relevant tax agent services on behalf of the company or partnership tax agent.[81]

  3. Where those tax agent services are provided on behalf of the tax agent or BAS agent by any other person or entity, the tax agent or BAS agent is still required to ensure that those services are provided competently.

  4. Importantly, if an entity not permitted under the TASA to provide tax agent services on behalf of a tax agent or BAS agent does, in fact, provide those services, the tax agent or BAS agent may be liable to a civil penalty for allowing this to occur. This may also constitute a breach of the Code to the extent that the agent has not complied with a taxation law and has not acted honestly and with integrity.

  5. To ensure that a service provided on behalf of a tax agent or BAS agent is provided competently, the agent must ensure that the provider of the service including any subcontractor, has the appropriate skills and experience, that adequate supervision and review arrangements are in place or that other appropriate steps are taken to ensure the accuracy of any services provided.[82]

  6. This does not necessarily require the tax agent or BAS agent to independently verify the technical accuracy of material prepared by a third party expert on the agent’s behalf.

  7. The level of supervision will depend upon a range of factors including:

    • the educational qualifications and extent of experience of the provider of the service
    • the nature of the actual service being provided
    • any structures or processes in place within an organisation (for example, supervisory arrangements or quality assurance procedures) to facilitate the competent provision of tax agent services.[83]

  1. The matters that could be considered relevant in determining the adequacy of the level of supervision and control that is being undertaken by a tax agent or BAS agent, may include, but are not limited to:

    • whether the tax agent or BAS agent has identified the knowledge and skills required of an entity to competently provide a tax agent service on the agent’s behalf and has assured that the entity providing the tax agent service both possesses and maintains the knowledge and skills[84]
    • the physical proximity of the relevant tax agent or BAS agent to the person carrying out the work on the agent’s behalf[85]
    • the level and depth of personal physical or other oversight undertaken by the tax agent or BAS agent over the provision of tax agent services on the agents’ behalf,[86]
    • the undertaking of ongoing, periodic review of the tax agent services provided on the tax agent’s or BAS agent’s behalf, rather than only undertaking final review of services performed.[87]

 

(8) You must maintain knowledge and skills relevant to the tax agent services you provide


What is a tax agent or BAS agent required to do to maintain relevant knowledge and skills?


  1. A tax agent or BAS agent must maintain knowledge and skills in the areas of the taxation laws and tax administration relating to the tax agent services provided by the agent. In relation to the provision of a tax agent service, the maintenance of competence by a tax agent or BAS agent requires continuing awareness, understanding and up-to-date knowledge of relevant technical, legal and business developments.[88]

  2. Compliance with this requirement may require a tax agent or BAS agent to undergo continuing professional education (CPE).[89] Fifteen structured hours per annum of CPE is considered by the Board to be an indicative minimum standard for the purpose of this principle.

  3. The Board will issue further guidance on the level of CPE required in due course.

  4. CPE may be considered to be further education intended for the systematic maintenance, improvement and broadening of knowledge and skills, and the development or personal qualities necessary for execution of professional and technical duties throughout the individual’s working life.[90]

  5. CPE is not restricted to courses offered by recognised tax agent associations, recognised BAS agent associations or registered tax agents or BAS agents and may include face-to-face training courses, distance learning and online courses.[91] CPE is not limited by physical proximity.

 

(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


Under what circumstances is a tax or BAS agent required to comply with this principle?


  1. A tax agent or BAS agent is required to comply with this principle if the agent is acting on behalf of a client in relation to a taxation law. This includes, for example, preparing and lodging a return on behalf of a client.[92]

  2. Note:

    Section 995-1 of the Income Tax Assessment Act 1997 provides that a ‘taxation law’ means:

    (a) an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or

    (b) regulations under such an Act (including such a part of the Act); or

    (c) the Tax Agent Services Act 2009 or regulations made under that Act.

    The Commissioner of Taxation is responsible for the administration of a number of Acts and regulations concerning:

    • income tax
    • indirect taxes (including GST, luxury car tax, wine equalisation tax)
    • superannuation
    • the Medicare levy
    • fringe benefits tax
    • franking tax
    • withholding taxes
    • petroleum resource rent tax
    • the administration or collection of the above taxes
    • product grants or benefits mentioned in section 8 of the Product Grants and Benefits Administration Act 2000 or the administration or payment of the product grants and benefits, and
    • net fuel amount, or the administration, collection or payment of a net fuel amount.

What are a tax agent’s or BAS agent’s obligations under this principle?


  1. A tax agent or BAS agent is only required to take reasonable care in ascertaining the client’s state of affairs to the extent that the state of those affairs is relevant to a statement the agent is making or a thing the agent is doing on behalf of a client. Therefore, the requirement to take reasonable care is necessarily limited by the scope of the engagement between the tax agent or BAS agent and the client.[93]

What does ‘reasonable care’ mean for tax agents and BAS agents?


  1. The standard of ‘reasonable care’ generally required of a tax agent or BAS agent is that of a competent and reasonable person, possessing the skills, qualifications and experience that are required to become a registered tax agent or BAS agent.[94]

  2. If, however, a tax agent or BAS agent specialises in any particular areas of the taxation laws, the standard of ‘reasonable care’ required is that of a competent and reasonable person professing to have the skills relevant to the area of specialisation.[95]

  3. ‘Reasonable care’ means what is reasonable in the circumstances. This will depend upon a range of factors, including the scope of the tax agent services being provided and the client’s level of professional knowledge and experience.[96]

What is ‘reasonable care in ascertaining a client’s state of affairs’?


  1. It is considered that ‘more is expected of a [tax or BAS] agent than a taxpayer completing his or her own return’.[97] This higher standard of care is a reflection of a tax agent’s or BAS agent’s ‘knowledge, education, experience and skill’.[98]

  2. It should be noted at the outset that this requirement under the Code does not create a requirement that a tax agent or BAS agent effectively ‘audits’ all of the agent’s clients before providing tax agent services to avoid breaching the Code.[99]

  3. Rather, this requirement is a duty of tax agents and BAS agents to take care beyond placing complete reliance on the accounts prepared, or work done, by a person without considering their level of knowledge and/or understanding of the taxation laws and the correctness of their work to ensure that the information upon which the provision of the tax agent’s services is based is accurate.[100]

  4. In most cases, this will require that a tax agent or BAS agent ask the client appropriate questions, based on the agent’s professional knowledge and experience, to ascertain the accurate factual basis upon which the tax agent services are provided and, where appropriate, to obtain supporting documents and records evidencing these facts.[101]

  5. The requirement to take reasonable care relates to the services that are to be provided and is therefore subject to the agreed scope of the engagement with the client. A tax agent or BAS agent would not be required to make further enquiries and it would be reasonable to rely on information or advice, if the scope of the tax agent services excludes the examination of information provided by the client or requires the tax agent or BAS agent to rely on the information or advice of another expert.[102] (These observations must also be considered in light of other paragraphs in this section and with the obligations under the TASA, which must be complied with.)

  6. Taking reasonable care will in many cases require that a tax agent or BAS agent ask questions based on their professional knowledge and experience in seeking information.[103] Where there are grounds to doubt the information provided by a client, the tax agent or BAS agent must take positive steps and make reasonable enquiries to satisfy themselves as to the completeness and/or accuracy of that information.[104]

  7. Where a statement provided by a client seems plausible and is consistent with previously established statements and the agent has no basis on which to doubt the client’s reliability or the veracity of the information supplied, the tax agent or BAS agent may discharge their responsibility by accepting the statement provided by the client without further checking.[105]

  8. However, if the information supplied by a client seems implausible or inconsistent with a previous pattern of claim or statement, further enquiries would be required.[106]

  9. Again, whilst there is no requirement to audit, examine or review books and records or other source documents supplied by a client, a tax agent or BAS agent does not discharge their responsibility in such a case by simply accepting what they have been told.[107]

  10. Where information has been provided by a suitable, independent, third party expert and there is no prior experience to the contrary, it may be reasonable for a tax agent or BAS agent to rely on that information without further checking or enquiries.

 

(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


What are the obligations of a tax agent or BAS agent under this principle?


  1. This principle requires a tax agent or BAS agent to take reasonable care to ensure the correct interpretation and application of the taxation laws to the circumstances in relation to which clients seek advice.[108] These circumstances may be the actual circumstances of the client or hypothetical circumstances provided by the client.[109]

  2. This principle does not require agents to determine the correct application of the law; rather it requires agents to take reasonable care to ensure the correct interpretation and application of the law in the circumstances.[110]

  3. Note:

    Section 995-1 of the Income Tax Assessment Act 1997 provides that a ‘taxation law’ means:

    (a) an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or

    (b) regulations under such an Act (including such a part of the Act); or

    (c) the Tax Agent Services Act 2009 or regulations made under that Act.

    The Commissioner of Taxation is responsible for the administration of a number of Acts and regulations concerning:

    • income tax
    • indirect taxes (including GST, luxury car tax, wine equalisation tax)
    • superannuation
    • the Medicare levy
    • fringe benefits tax
    • franking tax
    • withholding taxes
    • petroleum resource rent tax
    • the administration or collection of the above taxes
    • product grants or benefits mentioned in section 8 of the Product Grants and Benefits Administration Act 2000 or the administration or payment of the product grants and benefits
    • net fuel amount, or the administration, collection or payment of a net fuel amount.

What is ‘reasonable care’ for the purposes of this principle?


  1. It is considered that ‘more is expected of a [tax or BAS] agent than a taxpayer completing his or her own return’.[111] This higher standard of care is a reflection of a tax agent’s or BAS agent’s ‘knowledge, education, experience and skill’.[112]

  2. For the purposes of this principle, taking ‘reasonable care’ in ensuring the taxation laws are applied correctly means giving appropriately serious attention to complying with the obligations imposed under a taxation law at a standard that could be expected of a reasonable person in the agent’s position.[113]

  3. Where a tax agent or BAS agent is uncertain about how a taxation law applies to a particular set of circumstances, taking reasonable care may include seeking clarification from relevant authorities and sources such as:

    • legislation and related extrinsic material (for example, explanatory memoranda)
    • relevant case law
    • rulings and determinations issued by the Commissioner on the topic
    • the Commissioner’s instructions in documents such as income tax returns, BAS returns, fact sheets and practice statements
    • information published or provided by a recognised professional association or other regulatory agency, or
    • information or relevant commentaries published by other experts, registered agents or specialists.[114]

  1. In consulting relevant authorities and sources, the tax agent or BAS agent may choose to seek assistance from another appropriately qualified person who has the ability and resources to provide advice on taxation laws.[115]

 

(11) You must not knowingly obstruct the proper administration of the taxation laws


What are a tax agent’s or BAS agent’s obligations under this principle?


  1. A tax agent or BAS agent must not knowingly obstruct the proper administration of the taxation laws.

  2. A tax agent or BAS agent does not breach this requirement by relying on the agent’s or the client’s rights to withhold documents or to not provide information. Examples of such rights may include legal professional privilege or the ATO accountant’s concession set out in the published ‘Guidelines to Accessing Professional Accounting Advisor’s Papers’.[116]

What does ‘knowingly obstruct’ mean?

  1. The word obstruction is defined by reference to its ordinary meaning.[117]

  2. The Macquarie Dictionary[118] defines the relevant terms as follows:

  3. Obstruct

    2. to interrupt, make difficult, or oppose the passage, progress, course, etc., of Obstruction

    1 something that obstructs; an obstacle or hindrance

    2 the act of obstructing


  1. The test for determining whether an act or omission constitutes an obstruction is a test of reasonableness -that is, in doing the act or making the omission, has the person acted reasonably?[119]

  2. This is a question of fact to be answered with respect to the specific circumstances of a particular case.[120] The word ‘knowingly’ requires that the tax agent or BAS agent had actual knowledge, as opposed to constructive knowledge, of the obstruction caused by the agent’s conduct.[121]

  3. In determining whether this test is satisfied, the following considerations are relevant:

    • a temporary denial of access on reasonable grounds may fall short of being an obstruction.[122]
    • denial of documents for an indefinite period may constitute an obstruction.[123]
    • a positive act of obstruction by a person, from whom access to inspection of documents or other information is sought, is not necessarily a requirement in establishing that there has been an obstruction.[124]
    • actions essentially negative in character, for example withholding specific information, or knowledge of the means to access that information, from the Board or the Commissioner may be considered an obstruction.[125]
    • an act or omission that causes delay may be considered an obstruction where it can be established that the delay sought was for other than a genuine and reasonable purpose.[126]
    • repeated failure by a person to keep appointments or supply information may be considered an obstruction.[127]
    • repeated failure by a person to respond adequately to formal requests for information may be considered an obstruction. This will include excessive or repeated delays in responding, not replying to the request for information, giving information that is not relevant or does not address the issues in the request and/or supplying inadequate information.[128]

    What does ‘proper administration of’ the taxation laws mean?


    1. The phrase ‘proper administration of’ is not defined in the legislation and so adopts its ordinary meaning.

    2. The Commissioner has primary responsibility for the general administration of the taxation laws.[129]

    3. The Board is, however, responsible for the general administration of the TASA.[130] The TASA is a taxation law.[131]

    4. The proper administration of the taxation laws includes performing the statutory duties and functions as required by the taxation laws.

    5. An agent will breach the Code where the agent knowingly obstructs the Commissioner or the Board, or officers properly acting on behalf of the Commissioner or the Board in performing their respective statutory duties and functions as required by the taxation laws.

     

    (12) You must advise your client of the client’s rights and obligations under the taxation laws that are materially related to the tax agent services you provide


    What are a tax agent’s or BAS agent’s obligations under this principle?


    1. A tax agent or BAS agent is required to advise the agent’s clients of the client’s rights and obligations under the taxation laws that are materially related to the tax agent services that the agent provides to that client.[132]

    2. In this context, the phrase ‘related to’ will carry its ordinary meaning of ‘associated with’, ‘connected with’ or ‘linked with’.[133]

    3. For a client’s rights and obligations to be materially related to the tax agent services provided, a connection between the rights and obligations and the tax agent services is required. This connection must be substantial, rather than so tenuous that it is immaterial or can be ignored.[134]

    4. Whether a client’s rights and obligations are materially related to a tax agent service in any given case will vary according to the nature of the services provided to the client.

    5. Note:

      Section 995-1 of the Income Tax Assessment Act 1997 provides that a ‘taxation law’ means:

      (a) an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or

      (b) regulations under such an Act (including such a part of the Act); or

      (c) the Tax Agent Services Act 2009 or regulations made under that Act.

      The Commissioner of Taxation is responsible for the administration of a number of Acts and regulations concerning:

      • income tax
      • indirect taxes (including GST, luxury car tax, wine equalisation tax)
      • superannuation
      • the Medicare levy
      • fringe benefits tax
      • franking tax
      • withholding taxes
      • petroleum resource rent tax
      • the administration or collection of the above taxes
      • product grants or benefits mentioned in section 8 of the Product Grants and Benefits Administration Act 2000 or the administration or payment of the product grants and benefits
      • net fuel amount, or the administration, collection or payment of a net fuel amount.

    1. The tax agent’s or BAS agent’s obligations under this principle only extend to services within the scope of engagement between the tax agent or BAS agent and the client.[135]

    2. These rights and obligations could be referred to in a letter of engagement, report, advice or other communication with the client and may include, but are not limited to, providing advice on:

      • the nature of self-assessment, including the Commissioner’s ability to amend an assessment within a certain time after the original assessment, impose penalties and issue rulings on which clients may rely
      • the client’s obligation to keep proper records and the consequences of not doing so[136]
      • that the responsibility for the accuracy and completeness of the particulars and information required to comply with the taxation laws rests with the client
      • the application of the safe harbour provisions contained in the Taxation Administration Act 1953
      • where necessary, the rights or options available to clients, including how to seek a private ruling and how to object or appeal against adverse decisions made by the Commissioner.[137]

    1. Any letter of engagement, report, advice or other significant communication with the client should be in writing.

     

    (13) You must maintain the professional indemnity insurance that the Board requires you to maintain


    What are a tax agent’s or BAS agent’s obligations under this principle?


    1. Tax agents and BAS agents are potentially liable to clients for the agent’s own professional negligence as well as the negligence of those providing services on the agent’s behalf.[138]

    2. A tax agent or BAS agent must maintain appropriate professional indemnity insurance, if required by the Board.[139]

    3. If a tax agent or BAS agent does not have professional indemnity insurance which the Board has required, the Board may under subsection 20-30(3) of the TASA issue the tax agent or BAS agent with a notice requiring the agent to maintain professional indemnity insurance as specified in the notice.

    4. This notice may include requirements as to the level and essential terms of the insurance policy.[140]

    5. If the tax agent or BAS agent does not maintain the professional indemnity insurance that the Board requires the agent to maintain, the agent is likely to have breached the Code.[141]

    6. The Board requires that all registered tax agents and BAS agents, who are not exempted, have appropriate professional indemnity insurance coverage from 1 July 2011.[142]

     

    (14) You must respond to requests and directions from the Board in a timely, responsible and reasonable manner


    What are a tax agent’s or BAS agent’s obligations under this principle?


    1. If a tax agent or BAS agent receives a request or direction from the Board, the agent must respond to that request in a timely, responsible and reasonable manner.

    2. Claiming legal professional privilege or other legal rights on behalf of a client will not be considered an unreasonable response to a direction of the Board.[143]

    What does ‘timely, responsible and reasonable’ mean?


    1. These terms are not defined in the legislation and should therefore take on their ordinary meanings.

    2. The Macquarie Dictionary[144] relevantly defines these terms as follows:

    3. ‘Timely

      1. Occurring at a suitable time


      Responsible …

      2. Having a capacity for moral decisions and therefore accountable; capable of rational thought or action

      3. able to discharge obligations or pay debts

      4. reliable in business of other dealings; showing reliability

      Reasonable

      1. Endowed with reason

      2. agreeable to reason or sound judgment

      3. not exceeding the limit prescribed by reason, not excessive

      4. moderate’


    1. Examples of failures to respond to a Board request or direction in a timely, responsible and reasonable manner may include:

      • failing to provide written responses to Board correspondence within the time period specified for the response[145]
      • making arrangements with the Board to provide information and subsequently failing to provide that information in accordance with the arrangement[146]
      • providing responses to Board requests and/or directions that are false or misleading.[147]

     

    What are the consequences if a tax agent or BAS agent fails to comply with the Code?


    1. As detailed in paragraphs 10 to 24 of this Explanatory Paper, conduct that constitutes a breach of the Code may also be relevant to a determination of whether a tax agent or BAS agent is a fit and proper person or whether the civil penalty provisions will apply to the agent’s conduct.

    What are the specific sanctions provided for a breach of the Code?


    1. A tax agent or BAS agent is required to comply with all the obligations set out in the Code. If, following an investigation, the Board is satisfied that a tax agent or BAS agent has failed to comply with any of the principles of the Code, it may impose one or more of the following administrative sanctions on the agent:

      • a written caution
      • an order requiring the tax agent or BAS agent to take one or more actions including, but not limited to, the following:[148]
        • completing a course of education or training specified in the order by the Board
        • providing services (for which the tax agent or BAS agent is registered) only under the supervision of another tax agent or BAS agent that has been specified in the order, and/or
        • providing only those services specified in the order
      • suspension of registration, and/or
      • termination of registration.[149]

    1. The severity of any sanction imposed by the Board will depend upon the Board’s consideration of the nature and extent of the breach and the individual circumstances of each case.[150]

    2. If the Board imposes a sanction, other than a caution, on a registered tax agent or BAS agent, details of the sanction will be included on the register of registered and deregistered tax agents and BAS agents.[151]

    What is the effect of an order?


    1. An order is a direction from the Board requiring a tax agent or BAS agent to take one or more actions.[152]

    2. If the Board decides to make an order, it will notify the tax agent or BAS agent in writing of the order. The order may specify, as appropriate:

      • the period of time within which the tax agent or BAS agent must complete the requirements specified in the order; and/or
      • the period of time during which the order applies.[153]

    What is the effect of a suspension of a tax agent’s or BAS agent’s registration?


    1. If a tax agent’s or BAS agent’s registration is suspended, the tax agent or BAS agent must not provide tax agent services for the period of that suspension.[154]

    2. If the tax agent or BAS agent does provide tax agent services during a period of suspension, the Board may do one or more of the following:

      • impose further administrative sanctions
      • apply to the Federal Court for a civil penalty order, and/or
      • apply to the Federal Court for an injunction to restrain the tax agent or BAS agent from continuing to provide tax agent services.[155]

    What period of suspension may the Board impose?


    1. The Board may determine the period of suspension as it sees fit.[156]

    2. If a tax agent’s or BAS agent’s registration is already suspended when the Board suspends that agent’s registration, the Board may extend the agent’s original suspension for a further period. In this case, the further period of suspension commences at the end of the original suspension period.[157]

    Can a tax agent or BAS agent apply for renewal of registration during a suspension period?


    1. If a tax agent’s or BAS agent’s registration is due to expire during the period for which the agent is under suspension, the agent is still permitted to apply for registration or renewal of registration despite the fact that the agent is under suspension.[158]

    What is the effect of a termination of a tax agent’s or BAS agent’s registration?


    1. If the Board decides to terminate a tax agent’s or BAS agent’s registration, the agent will receive a written notice, which will include:

      • the Board’s decision to terminate the agent’s registration
      • the reasons for the decision
      • details of any period during which the agent is prohibited from applying for registration
      • the agent’s rights of review.[159]

    Is the Board required to notify a tax agent or BAS agent of a decision to impose a sanction on that agent?


    1. If the Board decides to impose a sanction on a tax agent or BAS agent for a breach of the Code, the Board is required to provide that agent with notification of that decision in writing.[160]

    Is a Board decision to impose an administrative sanction subject to review?


    1. If the Board makes a decision to impose an administrative sanction, the tax agent or BAS agent may apply to the Administrative Appeals Tribunal (AAT) for a review of that decision.[161]

     

Need more information?

For further information, refer to the Board’s website at www.tpb.gov.au