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Ongoing eligibility requirements for recognised tax agent associations

Ongoing eligibility requirements for recognised tax agent associations

Professional associations may be accredited by the Tax Practitioners Board (TPB) as a recognised tax agent association if they apply for recognition and meet certain minimum requirements under the Tax Agent Services Regulations 2009 (TASR).

In order to remain accredited as a TPB recognised tax agent association, the association must ensure that the eligibility requirements associated with accreditation (as set out in Schedule 1, Part 2 of the TASR) continue to be satisfied on an ongoing basis.

This document outlines the eligibility requirements and provides some examples of the types of evidence that may demonstrate they are being met.

Recognised associations should advise the TPB of any relevant updates (such as amendments to by-laws, codes etc.) in a timely, responsible and reasonable manner, rather than waiting for annual declaration requests from the TPB [1]. Further, the TASR requires that a TPB accredited recognised association must notify the TPB no later than 30 days after the day the association becomes aware, or ought to have become aware, that it no longer meets a requirement. [2]
 

Eligibility requirements in Schedule 1 of the TASR

Item 201 – Non-profit organisation

Item 202 – Governance and operational procedures

Item 203 – Professional and ethical standards for voting members

Items 204 and 205 – Complaints

Item 206 – Payment of debts

Item 207 – Management of organisation

Item 208 – State and territory law compliance

Item 209 – Number of members

Item 210 – Membership requirements
 

Item 201 – Non-profit organisation

This item requires that the organisation is a non-profit organisation.

Relevant information (i.e. electronic certificate of registration record) is checked with the Australian Securities and Investments Commission (ASIC) to confirm that an accredited association remains a non-profit organisation. Recognised associations must advise us of any changes to this registration in a timely manner.
 

Item 202 – Governance and operational procedures

This item requires that the organisation has adequate corporate governance and operational procedures to ensure that it is properly managed and that its internal rules are enforced.

Without limiting the source evidence required, the following list of non-exhaustive examples is provided by way of guidance:

  • notice of Annual general meeting (AGM)
  • minutes of AGM
  • details of any changes in board of director or committee composition
  • financial reports lodged with ASIC
  • audited financial statements
  • any relevant amendments to corporate governance documents, such as constitution, by-laws, rules, charters or codes
  • annual report (if applicable).
     

Item 203 – Professional and ethical standards for voting members

This item requires that an organisation’s professional and ethical standards for its voting members include terms to the effect that:

(a)   voting members must undertake an appropriate number of hours of continuing professional education (CPE) each year, having regard to the circumstances and requirements of the members. [3]
   The TPB’s approach to the satisfaction of this criterion has generally been aligned with the minimum hour requirement specified within the TPB’s CPE policy for registered tax agents. [4]
   Note: The TPB acknowledges the CPE / continuing professional development (CPD) requirements imposed on members of recognised associations as a condition of their membership. The TPB will accept a registered tax practitioner’s compliance with their association’s CPE / CPD requirements subject to certain provisos. [5] 
     
(b)   voting members must be of good fame, integrity and character.
   Accordingly, there is a requirement for relevant terms in documentation that closely reflect this requirement, recognising that this may be a prescribed term in a relevant document (such as the association’s code of conduct that members must abide by) or it could entail a combination of terms/clauses in more than one document.
     
(c)   each voting member is subject to rules controlling the member’s conduct in the practice of the member’s profession.
  

Examples could include:

  • clauses in constitution, by-laws or rules (setting out standards; member duties; required behaviours of members; what constitutes misconduct and the associated consequences; reference to disciplinary processes and procedures etc.)
  • any association codes (e.g. code of conduct, professional practice and/or ethics noting values and standards of conduct with which members are expected to comply)
  • member application forms including a relevant declaration (including disclosing any convictions, disciplinary actions and outcomes, bankruptcy)
  • requirement for members to complete annual declarations for their association.
   
(d)   each voting member is subject to discipline for breaches of rules controlling the member’s conduct in the practice of their profession.
   Examples could include particular rules and clauses in by-laws, as well as disciplinary processes and procedures for disciplining members who do not comply with the association’s by-laws, rules, codes etc. (and to any order/direction made under such).
     
(e)   if a voting member is permitted by that organisation to be in public practice, the voting member has professional indemnity (PI) insurance.
   Generally, the TPB’s approach to the satisfaction of this criterion has been aligned with the TPB’s PI insurance policy. [6]

Items 204 and 205 – Complaints

Item 204 concerns the requirement that the organisation has satisfactory arrangements in place for complaints – in particular, for:

(a)   notifying clients of its members, or of members of its member bodies, about how to make complaints
(b)   receiving, hearing and deciding those complaints
(c)   taking disciplinary action if complaints are justified.

 

Item 205 concerns the requirement that an organisation has satisfactory arrangements for publishing annual statistics about complaints and action taken – in particular, for:

(a)   the kinds and frequency of complaints made to an organisation (except complaints under the TASA about entities registered under the TASA)
(b)   the findings made as a result of the complaints
(c)   action taken as a result of those findings.

 

Examples of references could include:

  • a complaints form and overview of the complaints process (with relevant and accessible content placed on the organisation’s website)
  • disciplinary processes and procedures
  • relevant clauses in by-laws, codes, rules etc.
  • published information concerning findings and action taken (e.g. relevant reports published on a dedicated public webpage, annual reports, public online journals etc.), noting that information can be suitably anonymised in regard to any member details.

Note: Updates should be provided in a timely, responsible and reasonable manner. In the event that there have been no complaints (including where it has been determined that there has been no case to answer) since the previous annual declaration, it is recommended that a relevant note to this effect be included in the annual declaration.
 

Item 206 – Payment of debts

This item concerns the requirement that an organisation is able to pay its debts as they fall due.

Examples you provide to demonstrate your association meets this requirement could include:

  • audited financial statements (with accompanying director declarations and independent auditor report)
  • financial reports lodged with ASIC
  • annual reports (also noting that this information may have already been provided in association with other eligibility requirements items such as Item 202).

Consideration will be given to particular circumstances as appropriate, including any exceptional circumstances and relevant notice to the TPB.
 

Item 207 – Management of organisation

This item requires that the management of the organisation is required to be accountable to its members; and abide by the corporate governance and operational procedures of the organisation.

Examples you provide to demonstrate your association meets this requirement could include:

  • constitution, by-laws, rules, board charter and/or guidelines noting relevant details, including in regard to:
    • board and management functions
    • board and committee composition
    • qualities and competencies for directors and members
    • appointment and removal of the board of directors
    • board elections
    • processes and procedures for the conduct of board and committee meetings etc.
  • details of any changes in board of director or committee composition
  • appropriate notice of AGM
  • minutes of AGM
  • audited financial statements
  • financial reports lodged with ASIC
  • annual report (if applicable)

It is also recognised that examples provided for Item 202 (concerning corporate governance) may also cover evidence requirements for Item 207.
 

Item 208 – State and territory law compliance

This item notes that an organisation is taken to have arrangements that comply with a requirement in Item 203, 204 or 205 if the organisation or its members are subject to a state or territory law, or a rule or other instrument created by or under a state or territory law, that set out requirements that are the same as, or have a similar effect to, the requirements in Item 203, 204 or 205.

Based on previous applications for accreditation as a TPB recognised association, it is recognised that this Item may not be applicable in most circumstances. However, the TPB will seek relevant information from an association, as appropriate, in the event that an annual declaration demonstrates that Items 203, 204 or 205 are not satisfied.
 

Item 209 – Number of members

This item concerns the requirement that an organisation must have a minimum number of voting members (1,000) and registered tax agents (500).

The TPB has discretion to recognise an association if the organisation meets the requirements for recognition as a recognised tax agent association other than the requirements mentioned in Item 209. If the TPB exercises such discretion in accrediting a TPB recognised association, it is expected that such discretion will only be exercised for an appropriate period of time (having regard to the particular circumstances) and that relevant updates will be sought as part of the annual declaration process.

In the event that the TPB has exercised discretion on this Item, the association should periodically monitor the number of its voting members so it can inform the TPB when the minimum requirements are satisfied. The TPB Register may be of assistance in this regard.
 

Item 210 – Membership requirements

This item provides that each voting member of the organisation is required to comply with at least one of the following requirements:

(a)   the member has been awarded a degree or a post-graduate award in the discipline of accountancy from either an Australian tertiary institution or an equivalent institution;
(b)   the member has been awarded a diploma or higher award in the discipline of accountancy from either a registered training organisation or an equivalent institution;
(c)   the member has the academic qualifications required to be an Australian legal practitioner;
(d)   the member was both registered as a tax agent or nominee under the Income Tax Assessment Act 1936 (ITAA 1936) immediately before the TASR commenced and a member of, and entitled to vote at meetings, of a recognised professional association as recognised under the ITAA 1936; or
(e)   the member has the equivalent of eight years of full-time experience in providing tax agent services in the past ten years.

The TPB has discretion to recognise an association in the event that an organisation meets the requirements for recognition as a recognised tax agent association other than the requirements mentioned in Item 210. The TPB recognises that associations have diverse membership and that, having regard to particular circumstances, it may be appropriate for the TPB to continue exercising discretion on this particular item in appropriate instances. This will be determined on a case by case basis.

The TPB should be advised of any further relevant information in the event any update occurs, for example if there is any change to academic qualifications that members are required to possess.

[1] This could involve advising the TPB of when and where relevant information is made readily available, such as a record of the notice of an annual general meeting, a link to audited accounts etc.

[2] See Regulation 5C in the TASR.[3] The TASR provides that the appropriate number of hours of education each year may differ for members who have particular qualifications, areas of expertise or professional experience.

 [3] The TASR provides that the appropriate number of hours of education each year may differ for members who have particular qualifications, areas of expertise or professional experience.[4] See Continuing professional education policy requirements for registered tax and BAS agents TPB(EP) 04/2012

[4] See Continuing professional education policy requirements for registered tax and BAS agents TPB(EP) 04/2012

[5] These provisos include the following:

[6] See Professional indemnity insurance requirements for registered tax and BAS agents TPB(EP) 03/2010

Last modified: 27 April 2015