One of the registration requirements for a company or partnership entity to become a tax agent is to satisfy the ‘sufficient number’ requirement. This means your entity must have an adequate number of registered individual tax agents to:
- provide tax agent services to a competent standard, and
- carry out supervisory arrangements on behalf of the entity.
This is also an ongoing registration requirement.
- Sufficient number requirements
- Supervisory arrangements
- Failure to comply
- Further information - TPB Information Sheet
There is no set formula to determine the sufficient number of registered individuals for a practice, but the minimum number must be at least one. You must assess the number of registered individuals your practice needs to ensure tax agent services (which include BAS and tax (financial) advice services) are provided competently and there are adequate supervisory arrangements in place.
The registered individuals may include partners, directors, employees, contractors and staff provided under a service trust arrangement.
For company or partnership tax agents with a tax (financial) advice services condition, the registered individuals can include Australian financial services (AFS) licensee’s representatives such as:
- authorised representatives
- responsible managers
- compliance officers
- regional/line managers.
We will consider a range of factors to determine if your practice has an adequate number of registered individuals, including the following:
- Do you have adequate financial, technological and human resources to provide the tax agent services and provide supervision?
- Is the registered individual competent and adequately trained to provide effective supervision and control?
- Does the registered individual only supervise the tax agent services they are registered to provide?
- What is the size and scale of services provided within your business? This may include considerations such as your business turnover, number of clients, nature and sophistication of your client base and the number of relevant staff.
- How complex are the services being provided and supervised?
- How many qualified and experienced staff do you have and how often do they undertake training and development activities?
- Do you have sufficient technology support, including network security protocols and digital monitoring and review processes?
- What supervisory arrangements do you have in place, including quality assurance and control practices and escalation procedures?
- What are your risk management processes, including delegated supervision processes?
- Does your entity have a condition imposed on its registration by us?
For registered company or partnership tax (financial) advisers
If you were registered as a company or partnership tax (financial) adviser as at 31 December 2021, you may continue to provide tax (financial) advice services until 31 December 2022 without being subject to a civil penalty. During this period, we strongly recommend that you continue with your existing supervision and control arrangements.
For those applying for registration as a company or partnership tax agent to provide only tax (financial) advice services
From 1 January 2022, if you register as a company or partnership tax agent to provide only tax (financial) advice services, you must have at least one registered individual tax agent to form the sufficient number. In determining the sufficient number, we may also consider the number of qualified tax relevant providers (QTRPs) within your entity who provide tax (financial) advice services.
When appointing registered individuals to provide supervision for your practice, you must obtain their prior informed consent by way of a written signed statement. You must ensure they have considered all the relevant information before accepting to take on the supervisory role, including the nature of supervisory arrangements in place and the supervision and control to be undertaken. This will ensure the nominated individual is aware of their appointment as a supervising tax agent and understands the responsibilities of the role.
The only exception where the prior informed written consent will not be required is in situations where:
- you have existing documentation that sets out the nature of supervisory arrangements and supervision and control to be undertaken, and
- the nominated individual is aware of and understands the obligations set out in the documentation.
You must ensure tax agent services provided by you or on your behalf are provided competently. This is an obligation under the Code of Professional Conduct (Code).
To provide competent services and comply with the Code, you need to direct, oversee and check the services provided on your behalf. There doesn’t need to be an employer/employee relationship with the person performing the services to provide adequate supervision.
Supervisory arrangements are also important in the following contexts:
- the civil penalty provisions in the Tax Agent Services Act 2009 (TASA) – this relates to signing of declaration or statements prepared by someone who is not working under the supervision and control of a registered individual tax or BAS agent
- an individual obtaining relevant experience to register as a tax agent for the first time – individuals can demonstrate they have gained the required relevant experience by working under the supervision and control of a registered tax agent.
You will breach the civil penalty provisions in the TASA if you sign a declaration or statement required or permitted under a taxation law about your clients that was not prepared by someone working under your supervision and control.
For partnerships and companies, the declaration or statement must not be prepared by an individual who is not working under the supervision and control of a registered individual tax agent.
The penalty imposed for contravening these provisions is:
- up to 250 penalty units ($55,500) for an individual tax agent
- up to 1,250 penalty units ($277,500) for a partnership or company tax agent.
You can consider adopting a range of measures to ensure there is adequate supervision and control in your practice. Below are some suggested measures:
- Inspect, advise and direct how the staff undertake their tasks. While you do not have to monitor all work or interviews conducted, you must provide a substantial degree of oversight. ‘Substantial’ means there must be ample or considerable amount of involvement and not simply checking from time to time. This will vary according to the skills and experience of the staff and the complexity of tax matters involved.
- Ensure the staff have adequate level of education and understanding of the relevant tax laws to execute the tasks they are responsible for.
- Provide initial and ongoing training to your staff.
- Have documented procedures and processes in place so staff can raise any issues with their supervisor that are beyond their knowledge or if there have been any specific concerns raised by your clients.
- Implement quality assurance and control mechanisms and conduct audits of work undertaken by staff.
- Undertake spot checks of the source documents and questions asked by staff to justify any income and deductions declared.
We strongly recommend that you develop a plan setting out the supervisory arrangements in your practice. The supervisory plan should set out processes and procedures in your practice to provide competent services and adequate supervision, covering the measures outlined above.
The plan should help the nominated supervising tax practitioner to clearly understand what their responsibilities are and that of the staff under the plan.
Having such a plan should help you establish the supervisory processes for your practice and also help you to comply with your Code obligations.
Remote supervisory arrangements can apply in situations where the supervisor and the staff they supervise are in different locations or employed by different entities (including in relation to outsourcing and offshoring arrangements).
The following considerations can be helpful to ensure there is adequate supervision and control in remote working arrangements in addition to the measures outlined above:
- frequency of contact and the methods of communication
- whether the supervisor is available to be contacted at all times by staff
- access to training and research resources while working remotely
- management of workflow, particularly where the supervision and control is being exercised by an unrelated entity
- how documents are to be reviewed and feedback provided to staff
- how file and document sharing logistics will be managed
- whether systems allow for audits or reviews to be carried out remotely
- whether the registered individual supervises one or more entities
- other administrative obstacles inherent with a remote supervisory arrangement.
There may be situations where a nominated supervisor is supervising one or more related or unrelated entities. In these situations, the factors outlined above are still relevant to determine if adequate supervisory arrangements exist. Additionally, you should also consider:
- size of each entity – for example, turnover of business, number of clients, and number of relevant staff
- market segment of the client base of each entity
- type and complexity of the tax agent services being provided
- other professional duties or responsibilities of the nominated supervisor.
If your entity does not have a sufficient number of registered individuals or supervisory arrangements in its practice, it may breach the TASA.
If we find that you have failed to comply with the TASA, including the Code, we may impose one or more administrative sanctions or seek a Court imposed civil penalty.
For further information, including examples refer to our information sheet TPB(I) 36/2021 Supervisory arrangements under the Tax Agent Services Act 2009.
Last modified: 1 January 2022