Cross and Tax Practitioners Board [2021] AATA 441 (9 March 2021)
Division:	TAXATION AND COMMERCIAL DIVISION
File Numbers:	2020/2356
	2020/2357
Re:                          Ashley Cross
	FIRST APPLICANT
And                         M. Adamson & A. Cross
                                SECOND APPLICANT
And	Tax Practitioners Board
	RESPONDENT
Decision

Tribunal:	Deputy President Boyle

Date:	9 March 2021
Place:	Perth

The Tribunal varies each of the Decisions by deleting “s 60-125(2)(b)(ii)” and substituting therefor “s 60-125(2)(b)(i) by terminating the registration under s 30-30”. 
.......[SGD].................................................................
Deputy President Boyle

CATCHWORDS
TAX AGENT REGISTRATION – tax agent registration termination – practitioner not a fit and proper person – failure to meet requirements of registration – partnership ceases to meet registration requirements – 125 self-managed super fund annual returns lodged with false declarations – review by Tribunal exercising all of the powers of the Board under TASA – reviewable decisions varied

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 41(2)
Partnership Act 1895 (WA) – s 45
Tax Agent Services Act 2009 (Cth) – ss 2-5, 20-5, 20-5(1)(a), 20-5(2)(a)(ii), 20-15, 30-10, 30-10(1), 30-10(7), 30-10(14), 30-15, 30-15(1), 30-15(2), 30-15(2)(d), 30-20, 30-25, 30-30, 40-A, 40-5, 40-5(1)(b), 40-10, 40-10(1)(a), 40-15, 40-25(1), 60-E, 60-95, 60-125(2), 60-125(2)(a), 60-125(2)(b)(i), 60-125(2)(b)(ii), 60-125(2)(b)(iii), 60-125(2)(b)(iv), pt 3

CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Cross and Tax Practitioners Board [2020] AATA 1471
Hill and Tax Practitioner Board [2020] AATA 678
Johnson and Commissioner of Patents [2020] AATA 3983
Li and Tax Practitioners Board (2014) 141 ALD 201
SHTX and Tax Practitioners Board (2016) 158 ALD 549
Stasos v Tax Agents’ Board (1990) 21 ALD 437
Su v Tax Agents’ Board South Australia (1982) 61 FLR 1

 SECONDARY MATERIALS
Explanatory Memorandum, Tax Agent Services Bill 2009 (Cth)

REASONS FOR DECISION

Deputy President Boyle

9 March 2021

the applications
1.	On 2 April 2020, the Respondent (the Board) made the following decisions:
(a)	to terminate the First Applicant’s registration as a tax agent in accordance with subsection 60-125(2)(b)(ii) and section 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (TASA);
(b)	that the First Applicant may not apply for registration for a period of two years from the date the termination of his tax agent registration takes effect, pursuant to section 40-25(1) of TASA; and
(c)	to terminate the Second Applicant’s registration as a tax agent in accordance with subsection 60-125(2)(b)(ii) and section 40-10(1)(a) of TASA.
(the Decisions).
2.	Applications for review of the Decisions were lodged with the Tribunal on 23 April 2020.
the decisions
3.	The bases of the Decisions were:
First Applicant
The Board was not satisfied that the First Applicant met the tax practitioner registration requirement under s 20-5(1)(a) of TASA that he be a fit and proper person because of breaches of subsections 30-10(1) and 30-10(7) of the Code of Professional Conduct in TASA (the Code). Although the Decision to terminate the First Applicant’s registration “in accordance with subparagraph 60-125(2)(b)(ii)” did not spell out the factual basis for termination under that provision, it can be taken that it was because of the findings of the breaches of subsections 30-10(1) and 30-10(7) which were breaches of TASA following an investigation under s 60-95 for the purposes of s 60-125(2) of TASA.
Second Applicant
The Board was not satisfied that the Second Applicant met the tax practitioner registration requirement under s 20-5(2)(a)(ii) of TASA that each individual partner is a fit and proper person because the Board was not satisfied that the First Applicant was a fit and proper person. As with the Decision in relation to the First Applicant, the Decision in relation to the Second Applicant did not spell out the factual basis for the termination under s 60-125(2)(b)(ii), however, again, it can be assumed that it was because of the findings of the breaches of subsections 30-10(1) and 30-10(7).
4.	On 23 April 2020 requests were made by the Applicants for stays of the operation or implementation of the Decisions under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Those requests were denied by the Tribunal (Stay Decision).
BACKGROUND
5.	On 1 March 2010 the First Applicant was registered as an individual tax agent under TASA.
6.	On 18 July 1991 the Second Applicant was registered as a partnership tax agent. The Second Applicant has two partners being the First Applicant and Ms Margaret Adamson. Ms Adamson is also a registered tax agent.
7.	On 25 September 2019 the Board received a referral from the Australian Taxation Office (ATO) acting on behalf of the Commissioner of Taxation (the Commissioner) concerning the conduct of the First Applicant. The ATO alleged that:
(a)	the First Applicant had lodged 19 self-managed super fund annual returns (SAR) on behalf of the Second Applicant listing the auditor as Ms Gardner of audit firm Butler Settineri when she had not completed an audit;
(b)	the First Applicant had admitted the he had lodged SAR prior to audit; and
(c)	the issue of lodging unaudited SAR may not be limited to the 2017 financial year.
8.	According to the Board, further enquiries by the Board of Ms Gardner identified that:
(a)	at least 125 SAR were lodged prior to audit; and
(b)	eight funds had not been audited for 10 years or more.
9.	On 19 December 2019 the Board commenced an investigation under Subdivision 60-E of TASA into the conduct of the First Applicant.
10.	By letters dated 17 March 2020 each of the Applicants were provided with notices setting out the allegations that had been made and advising that the conduct described in the allegations may be a breach of TASA. In each case the letter attached details of the allegations made against the relevant Applicant and the evidence upon which the allegations were based. In the case of the First Applicant, the attachments to the letter totalled 883 pages and, in the case of the Second Applicant, that attachments to the letter totalled 884 pages.
11.	The letters advised that each Applicant was to provide a written response pursuant to s 30-10(14) of TASA as to whether the Applicant admitted the allegations or if they contested the allegations and, if they did, the reasons for contesting the allegations. The letters further advised that as the outcome of the Board’s investigation may affect the relevant Applicant’s registration, they may wish to seek legal advice.
12.	By responses dated 31 March 2020 each of the Applicants responded to the Board’s letters of 17 March 2020. The same letter, signed by the First Applicant, was sent by both Applicants. This is not surprising given that the allegations against the Second Applicant relate to the conduct of the First Applicant as a partner of the Second Applicant.
13.	In his letter of 31 March 2020, the First Applicant contested the allegations:
(a)	that he had not acted competently;
(b)	that he had not acted honestly and with integrity; and
(c)	that he is not a fit and proper person. 
14.	In contesting the allegations the First Applicant contended that the auditors had by then completed the audit of 76 of the 125 SAR and had confirmed ‘in every instance that the financial statements and income tax returns lodged were true and correct and that the SMSF’s [sic] had complied with all of the SIS regulations applying to SMSF’s [sic]’. The First Applicant contended that because of this ‘he had not undermined the integrity of the taxation system’.
15.	At page 5 of his letter, the First Applicant stated:
In summary, the fact that the auditors have confirmed income tax returns of the funds are correct and the funds have complied with all SIS Legislation confirms I am competent.
16.	The letter emphasised that the audits, once carried out, confirmed the correctness of the financial statements that had been included in the SAR. The letter also sought to explain, by reference to previous letters sent to the Board in November 2019, December 2019 and January 2020, why the audits of the self-managed super funds (SMSF) had been delayed.
17.	In that letter the First Applicant answers the allegation that he is not fit and proper as follows:
It is alleged that I may not be a fit and proper person, particularly as my response to the Board was that the only issue was the incorrect date on the return.
I do understand it is significant to have had the incorrect date on the returns and have advised that it will not occur again and have taken a significant step in 2019 to change auditors which has already made a huge difference in reducing the time to have audits completed and consequently resolve a significant problem I had.
In respect of the comment that I misled clients to believe audits had been completed, I totally reject this and refer to my earlier comments. In respect of my concerns for clients, I have always put absolute priority on ensuring their income tax returns and associated tax liability are calculated correctly and in accordance with the taxation laws. I have also placed heavy emphasis with clients on the conduct of their funds to ensure they comply with all of the requirement [sic] of the SIS Act.
...
The Australian Taxation Office in their referral to the Board confirms their main concern is that if not audited, the SMSF may have committed fraud or significant contraventions of the taxation or superannuation legislation.
The independent auditors on all of the audits completed to date have confirmed every fund in every year has complied with all taxation and superannuation legislation.
There has been no problem with the conduct of the funds.
I believe this confirms I have maintained the integrity of the taxation system as all income tax returns lodged have been verifies by the auditors to be true and correct for all audits they have completed.
18.	By letters dated 14 April 2020 the Board advised that, on 2 April 2020, it had decided that the First Applicant no longer met the requirement for registration under s 20-5(1)(a) of TASA that he be a fit and proper person. As a result, the registration of the First Applicant was terminated under s 40-5(1)(b) of TASA and the registration of the Second Applicant was terminated under s 40-10(1)(a) of TASA. The letters to each of the Applicants also advised that the Board had decided to terminate their respective registrations under s 60-125(2)(b)(ii). Each of the letters to the Applicants advised that the terminations of registration were to take effect from 19 May 2020. In addition, the Board decided, pursuant to s 40-25(1) of TASA, that the First Applicant may not apply for registration for a period of two years from the effective date of the termination.
legislative framework
19.	Section 2-5 of TASA provides:
Object
The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):
(a)	establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and
(b)	introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and
(c)	providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.
20.	Subdivision 60-E of TASA empowers the Board to commence an investigation into, amongst other things, any conduct that may breach TASA.
21.	Section 60-125(2) of TASA relevantly provides:
If the Board investigates conduct under section 60-95 and finds that the conduct breaches this Act, the Board must either:
(a)	make a decision that no further action will be taken; or
(b)	do one or more of the following:
(i)	impose one or more sanctions under Subdivision 30-B;
(ii)	terminate an entity's registration under Subdivision 40-A;
(iii)	apply to the *Federal Court for an order for payment of a pecuniary penalty under Subdivision 50-C;
(iv)	apply to the Federal Court for an injunction under section 70-5.
...
22.	Section 60-95 of TASA relevantly provides:
(1)	The Board may investigate:
(a)	your application for registration; or
(b)	any conduct that may breach this Act; or
(c)	other matters prescribed by the regulations.
(2)	The Board must notify you in writing if the Board decides to investigate you. The notice must be given within 2 weeks after the decision is made.
23.	Section 20-5 of TASA relevantly provides:
Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviser
Individuals
(1)	An individual, aged 18 years or more, is eligible for registration as a *registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that:
(a)	the individual is a fit and proper person; and
...
	Partnerships
(2)	A partnership is eligible for registration as a *registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that:
(a)	each partner who is an individual is:
(i)	aged 18 years or more; and
(ii)	a fit and proper person; and
...
24.	Section 20-15 of TASA provides:
Criteria for determining whether an individual is a fit and proper person
In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:
(a)	whether the individual is of good fame, integrity and character; and
(b)	without limiting paragraph (a):
(i)	whether an event described in section 20-45 has occurred during the previous 5 years; and
(ii)	whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and
(iii)	whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years.
25.	Section 40-5(1)(b) of TASA provides:
Termination of registration - individuals
(1)	If you are a * registered tax agent, BAS agent or tax (financial) adviser and an individual, the Board may terminate your registration if:
(a)	an event affecting your continued registration, as described in section 20-45, occurs; or
(b)	you cease to meet one of the * tax practitioner registration requirements; or
...
26.	Section 40-10(1)(a) of TASA relevantly provides:
Termination of registration - partnerships
(1)	If you are a *registered tax agent, BAS agent or tax (financial) adviser and a partnership, the Board may terminate your registration if:
(a)	you cease to meet one of the * tax practitioner registration requirements; or
...
27.	Part 3 of TASA contains the Code, which applies to all registered tax agents. Section 30-10 relevantly provides:
The Code of Professional Conduct
Honesty and integrity
(1)	You must act honestly and with integrity.
...
Competence
(7)	You must ensure that a *tax agent service that you provide, or that is provided on your behalf, is provided competently.
28.	Section 30-15 of TASA provides:
Sanctions for failure to comply with the Code of Professional Conduct
(1)	This Subdivision applies if the Board is satisfied, after conducting an investigation under Subdivision 60-E, that you have failed to comply with the *Code of Professional Conduct.
(2)	The Board may do one or more of the following:
(a)	give you a written caution;
(b)	give you an order under section 30-20;
(c)	suspend your registration under section 30-25;
(d)	terminate your registration under section 30-30.
29.	Section 30-30 of TASA provides:
Termination
The Board may terminate your registration
30.	Section 40-25(1) of TASA provides:
(1)	If the Board terminates your registration, the Board may also determine a period, of not more than 5 years, during which you may not apply for registration.
the issues
31.	The issues for determination by the Tribunal are:
Application 2020/2356
(a)	Is the First Applicant a fit and proper person for the purposes of s 20-5(1)(a) of TASA?
(b)	If the answer to (a) is no, what, if any, is the correct or preferable sanction?
(c)	Did the First Applicant breach s 30-10 of the Code?
(d)	If the answer to (c) is yes, what is the correct or preferable action or sanction under s 60-125(2) or any other provision of TASA?
Application 2020/2357
(a)	Does the Second Applicant satisfy the requirements of s 20-5(2)(a) of TASA;
(b)	If the answer to (a) is no, what, if any, is the correct or preferable sanction?
(c)	Did the Second Applicant breach s 30-10 of the Code?
(d)	If the answer to (c) is yes, what is the correct or preferable action or sanction under s 60-125(2) or any other provision of TASA?
the hearing and the evidence
32.	Pursuant to a direction made on 14 May 2020, the applications were programmed and heard together. The hearing of the applications was on 26 October 2020. Mr S Vandongen SC, instructed by Sceales Lawyers, appeared for both Applicants. Mr M Crowley appeared for the Board. The First Applicant was the only witness to give evidence at the hearing. The following documents were admitted into evidence:
(a)	Applicants’ Statement of Facts, Issues and Contentions (Applicants’ SFIC), dated 12 June 2020, with annexures 1–7 (Exhibit A1);
(b)	Statement of Evidence of the First Applicant, dated 21 August 2020 (Exhibit A2);
(c)	Applicants’ bundle of references, received by the Tribunal on 26 October 2020 (Exhibit A3); 
(d)	Handwritten register of information provided to Adamson and Cross, undated (Exhibit A4);
(e)	Respondent’s Statement of Facts, Issues and Contentions, dated 29 June 2020 (Exhibit R1);
(f)	T-Documents for matter 2020/2356 (Exhibit R2); and 
(g)	T-Documents for matter 2020/2357 (Exhibit R3).
33.	Mr Vandongen SC made closing submissions at the hearing on 26 October 2020. During those closing submissions the issue of the Second Applicant’s standing, or more accurately, its existence, re-emerged. This was an issue that had come up in the stay application in May 2020 (see [4] above). The Applicants had argued that the termination of the First Applicant’s registration would, by operation of s 45 of the Partnership Act 1895 (WA) (the Partnership Act), terminate the partnership which is the Second Applicant (see [58] of Stay Decision). Mr Vandongen advised in his closing that that was an issue which he “would like to take on notice” and put on submissions at a later date (transcript at 56–57). At the conclusion of the Applicants’ closing submissions at the hearing on 26 October 2020, the following directions were made:
1.	On or before 9 November 2020 the Applicants to file with the Tribunal written submissions on the effect of the termination of the First Applicant’s registration as a tax agent on the Second Applicant’s standing to bring or maintain an application in the Tribunal and serve a copy on the Board.
2.	On or before 23 November 2020 the [Board] to file with the Tribunal written closing submissions and serve a copy on the Applicants.
3.	On or before 30 November 2020 the Applicants to file with the Tribunal any written submissions in reply and serve a copy on the [Board].
34.	On 9 November 2020 the Applicants duly provided their submissions on the Second Applicant’s standing to bring or maintain an application and on 23 November 2020 the Board provided its closing submissions. On 1 December 2020 the Applicants advised the Tribunal that they did not intend filing any submissions in reply.
consideration
35.	It was conceded by the Applicants that 125 SAR had been lodged under certificates which stated that the funds had been audited prior to lodgement. The Applicants concede that those certificates were false, and that providing the name of the auditor and date of audit as they did was dishonest and contrary to ss 30-10(1) and 30-10(7) of the Code. 
36.	The letters dated 14 April 2020 sent to each of the Applicants advising of the Decisions of the Board made on 2 April 2020, stated under the heading “Decision” on the first page, that the Board had found, in each case, that the Applicant had failed to comply with ss 30-10(1) and 30-10(7) of the Code. The letters stated that the Board had “also decided that [the Applicant] no longer [met] the requirement for registration”, in the First Applicant’s case under s 20-5(1)(a) and in the Second Applicant’s case under s 20-5(2)(a)(ii). That summary of the Decision on the first page of the letters then went on the state, in relation to the First Applicant, that:
As you no longer meet the registration requirements, we will terminate your registration as a tax agent under paragraph 40-5(1)(b) of … TASA.
and, in relation to the Second Applicant, that:
 As the partnership no longer meets the registration requirements, we will terminate its registration as a tax agent under paragraph 40-10(1)(a) of … TASA.
37.	That summary in each case advised that the registration was terminated under Subdivision 40-A of TASA because the Applicant in each case no longer met the requirements for registration. That summary, however, does not reflect the Decisions made by the Board. In each case the Board decided to terminate the relevant Applicant’s “registration as a tax agent in accordance with subparagraph 60-125(2)(b)(ii) and paragraph 40-5(1)(b)” in the case of the First Applicant and subparagraph 60-125(2)(b)(ii) and 40-10(1)(a) in the case of the Second Applicant. The fact that the Applicants’ registrations had also been terminated under s 60-125(2)(b)(ii) of TASA was also spelt out on the third page of each of the letters dated 14 April 2020.
38.	Section 60-125(2) is mandatory in its language. If the Board carries out an investigation under s 60-95 (which it did in both cases) and finds that the registered tax agent has breached TASA (which it found in both cases and which is conceded by the Applicants in both cases), it “must” make a decision “that no further action will be taken” or take one of the actions set out in sub-ss (b)(i)–(iv). In each case the Board acted by terminating the registration under s 60-125(2)(b)(ii).
39.	Neither of the parties made any submissions, either written or oral, on the termination of the Applicants’ registrations under s 60-125(2)(b)(ii) of TASA. The Applicants’ outline of submissions (para 3) made extensive submissions on the sanctions and actions available under Part 3 of TASA for breaches of the Code, which include termination of registration. The Applicants’ registrations were not, however, terminated under Part 3 of TASA, they were terminated under ss 60-125(2)(b)(ii) (in each case) as well as 40-5(1)(b) and 40-10(1)(a) respectively. The Tribunal will, however, take the Applicants’ submissions on the appropriateness of penalties in para 3 of the Applicants’ outline of submissions as being relevant to the type of sanctions that should apply in the present case, whether they be imposed under s 60-125(2), s 40-5, s 40-10 or Part 3 of TASA. In that regard the Tribunal’s role in reviewing a decision is “to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be”; “exercis[ing] all of the powers and discretions that are conferred by any enactment on the person who made the decision”. In other words, the Tribunal is not limited to simply looking at the decisions that were made and the sanctions that were imposed by the Board to determine whether they were appropriate. The Tribunal’s function is to consider the evidence before it and, exercising all of the powers and discretions that the Board has under TASA, to determine what the correct or preferable sanctions or actions are (if any). Amongst those powers would be the powers under Part 3 of TASA. 
40.	As noted at [35] above, the Applicants concede that they breached the Code. It is also the case that the Applicants’ breach of the Code (that is a breach of TASA) was found by the Board following an investigation under Subdivision 60-E of TASA. The Board’s power to investigate a registered tax agent’s conduct to determine if there has been a breach of TASA is contained in s 60-95, which is in Subdivision 60-E. That being the case, the conditions for the operation of ss 60-125(2) and 30-15 are met. As also noted above, while the power to impose sanctions (in some circumstances including the termination of registration) under ss 40-5, 40-10, 30-15, 30-20, 30-25 and 30-30 are discretionary (“the Board may”), once the conditions of s 60-125(2) are satisfied, the Board “must” take one of the courses in subsections (2)(a) or (b). 
41.	The first option available to the Board under s 60-125(2) is to “make a decision that no further action will be taken”. Given the seriousness of the Applicants’ breaches of TASA, making 125 false declarations to the Commissioner over a nine-year period, the Tribunal is of the view that taking no action is not the correct or preferable option under s 60-125(2). 
42.	The next option under s 60-125(2) is to impose one or more sanctions under Subdivision 30-B of TASA. One of the sanctions available under Subdivision 30-B is to terminate the tax agent’s registration. Because there was a finding of breaches of the Code following an investigation, further options are also available under s 30-15(2).
43.	The next option under s 60-125(2) is to terminate the entity’s registration under Subdivision 40-A. This was the option taken by the Board. However, the requirement that the termination of registration be done under Subdivision 40-A may be problematic. The powers to terminate registration in Subdivision 40-A are contained in ss 40-5 (individuals), 40-10 (partnerships) and 40-15 (companies). In each of those sections, however, the power is only enlivened if the conditions set out in those sections are met. There is no general or unconditional power to terminate registration in Subdivision 40-A. There is nothing before the Tribunal which would indicate that the Applicants’ breaches of TASA alone would satisfy the conditions in ss 40-5(1) and 40-10(1). Accordingly, while the Board did purport to terminate the Applicants’ registrations under s 60-125(2)(b)(ii), as well as under ss 40-5 and 40-10, notwithstanding that s 60-125(2)(b)(ii) specifies that that can be done under Subdivision 40-A, in the case of the Applicants there is no relevant power to terminate under that subdivision absent satisfaction of the conditions. Whether the power to terminate registration under ss 40-5 and 40-10 or some other section of TASA were otherwise enlivened (i.e. independently of s 60-125(2)(b)(ii)) is a separate issue.
44.	The final two options available to the Board under s 60-125(2)(b), applying to the Federal court for an order for payment of a pecuniary penalty or an injunction, are, in the Tribunal’s view, not appropriate in the present case and neither party has suggested those as options. The Tribunal will return to what it sees as the correct or preferable course under s 60-125(2) later in this decision.
Is the First Applicant a fit and proper person?
45.	In order to determine whether the First Applicant is a fit and proper person and what penalty (if any) is appropriate, the Tribunal must consider the nature and seriousness of the First Applicant’s conduct. It is not disputed that the First Applicant knowingly submitted 125 SAR with false information and knowingly made 125 false declarations that audits had been completed. It is conceded by the Applicants that this conduct was dishonest and contrary to ss 30-10(1) and 30-10(7) of the Code (see [35] above).
46.	The Applicants’ primary contention is that, when the circumstances in which the SAR were lodged and the First Applicant’s professional record, contrition and references from clients are taken into account, the conduct does not establish that the First Applicant is not a fit and proper person. The Applicants make the point, correctly, that the issue for determination by the Tribunal is not whether the First Applicant was a fit and proper person at the time of the Decisions, but whether he presently is a fit and proper person. In considering that question, however, as noted by Senior Member Redfern (as she then was) in Li and Tax Practitioners Board (Li) at [47]:
… it is relevant to consider whether Mr Li is fit and proper having regard to the nature and extent of any breaches of the Code. The Code establishes professional standards for tax agents and, while a breach of the Code does not preclude eligibility, repeated or serious breach may demonstrate that the tax agent is not of good fame, integrity and character and thereby, not fit and proper.
47.	Hill J in Stasos v Tax Agents’ Board (Stasos) stated at 443:
The conferral of this privilege upon registered tax agents carries with it a consequent set of obligations and responsibilities. A person is required, before being registered as a tax agent to demonstrate that he is a fit and proper person to prepare income tax returns and transact business on behalf clients in tax matters and, inter alia, that as at the date of the application he is of good fame, integrity and character.
48.	In the same judgment, commenting on the point in time at which the assessment of whether someone is a fit and proper person is to be made, namely at the time of the Tribunal’s decision, Hill J said at 445:
 ...a person who has been shown to be other than a fit and proper person to be registered must satisfy the Tribunal considering his reregistration or cancellation of his registration as the case may be, that he appreciates the significance of his wrongdoing, that he regrets it and that he has rehabilitated himself such that it is truly unlikely that there will be any lapse in the future of the standards which are required of him. The more serious his dereliction from duty the longer may be the time necessary to show this. It will not be sufficient for him to merely express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent.
49.	In the context of tax agents, Davies J in Su v Tax Agents’ Board South Australia at 4 to 5 said:
A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.
50.	In the same vein as Davies J’s comments about the need for officers of the Taxation Department to have confidence that taxation returns lodged by the agent have been prepared honestly and competently, Hill J in Stasos said (at 444):
In addition to the tax agent dealing with his client, he will, almost invariably have dealings with officers of the Australian Taxation Office and perhaps the boards or tribunals to which I have referred. Those dealings must be able to be carried on in an atmosphere of mutual trust. The commissioner and his officers must be able to accept that, to the best of the ability of the tax agent, returns have been prepared which are true and accurate. This is particularly so now that the commissioner has proceeded to a system of self-assessment, with inaccuracies only coming to light in case of random audit or, presumably other information coming to the hands of the commissioner.
The commissioner and his officers must be able, also, to accept the word of a tax agent when acting for a taxpayer in negotiations, and a fortiori in matters proceeding in a Board, the Administrative Appeals Tribunal or indeed a court it is imperative that the honesty and integrity of the tax agent not be called into doubt. So it is that it is a requirement, not only of initial registration, but of remaining on the register that a tax agent be a fit and proper person to perform the duties of a tax agent and bear the responsibilities that come with those duties.
51.	Senior Member Taylor SC in Hill and Tax Practitioner Board (Hill), having cited the passage from Stasos quoted in [48] above, said (at [105]–[106]):
[105] The last sentence in the immediately preceding passage, with its apparent emphasis on the likelihood of future compliance, has been particularly influential in subsequent decisions that have focussed on the protective nature of the registration function – and in the Explanatory Paper itself (see [62]). But, as the full context of Hill J reasoning, and the earlier cited passages from the reasons in Bond [Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321] and Su show, the considerations relevant to the protective function are not limited to subjective confidence in the unlikelihood of future misconduct. Reputation and perceptions are also permissibly relevant considerations. In Stasos, Hill J emphasised that the person’s subjective contrition was not conclusively determinative. His Honour also said that fitness depended on satisfaction that others (clients and tax officers) could confidently be satisfied of his honesty (and competence). The relevance of both actual and reputed honesty and competence was apparent in Hughes and Vale Pty Ltd, as in Bond, Su and Stasos, and it has continued to be apparent in subsequent decisions.
[106] The passages I have cited from the reasons in Su and Stasos, highlight the proposition that satisfaction about a person’s honesty is fundamental to a determination of the contemporary fitness for registration as a tax agent. Emphasis on that proposition is implicit in TASA ss 20-15(b) & 20-45(b). It is an emphasis repeatedly found in other matters. …
52.	 At [110] of Hill Senior Member Taylor SC observed: 
Where integrity has been called into question by past dishonesty, satisfaction about contemporary good character and fitness, assessed in a forensic context, may properly be influenced (though not determined) by a degree of scepticism. Part of the reason for that scepticism is the self-interested nature of subjective assertions of contrition. Regret about the consequences of discovered and sanctioned past misconduct is one thing, insightful determination and capacity to avoid future misconduct is another:- see Frost – discussed in paragraph 107 above. As Walsh JA said In Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461:
... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man
and at [117] observed that:
The question whether, and in what circumstances, lapse of time, asserted contrition and the apparently exceptional nature of past misconduct suffice to permit satisfaction of a person’s contemporary fitness and propriety, permits a wide scope for judgment. The answer to the question is correspondingly difficult and admits of different conclusions, about which minds may reasonably differ…
53.	In relation to assessing the degree of dishonesty involved in the First Applicant’s conduct, the Applicants contend that:
(a)	the sole motivation for making the false declarations was to avoid penalties being incurred by the clients and adverse consequences on future lodgement dates and the regulated status of the funds. He did it for what he believed to be in the best interests of his clients;
(b)	neither Applicant derived any financial benefit from the course of conduct;
(c)	no financial loss has been occasioned, either to the Commonwealth or the clients;
(d)	audits of the funds subsequently confirmed that the funds had complied with the relevant superannuation legislation and regulations;
(e)	contrary to what was asserted by the Board, the First Applicant did not lodge the SAR with the false declarations to protect himself from potential claims against him by clients; and
(f)	the First Applicant did not continue to lodge returns with false declarations after he was contacted by the ATO.
54.	The Applicants then contend that, having assessed the degree of dishonesty taking the considerations listed in [53] into account, the First Applicant is now a fit and proper person because:
(a)	he has admitted the conduct and understands the seriousness of what he did and is extremely remorseful;
(b)	in the period of review the First Applicant has lodged 7,500 tax returns. The tax returns that he lodged with the false declarations comprise only 1.66% of the returns that the Second Applicant has lodged;
(c)	since 1 July 2019 SAR have only been lodged after the audit has been done;
(d)	before 19 May 2019 arrangements were made to ensure that SAR would not be lodged before the audits had been done;
(e)	an alternative firm had been appointed to undertake the audits;
(f)	the business undertaken by the Second Applicant in relation to SMSFs (and the business that resulted in the First Applicant’s registration being terminated) only constitutes 10% of the professional services rendered;
(g)	the client references attached to the First Applicant’s statement attest to his character;
(h)	the First Applicant has voluntarily completed the self-managed superannuation funds trustee education program course by the Institute of Chartered Accountants and CPA Australia “SMSF Trustee Education Program” and the Taxation Institute “TASA 2009 and Code of Professional Conduct Course in 2019”; and
(i)	there is no risk to the public interest in respect of future preparation of compliant returns.
55.	The Tribunal has considerable reservations about the above contentions. 
56.	Firstly, irrespective of his motivation, the fact is that the First Applicant on 125 occasions over a period of approximately nine years, chose to put what he perceived to be the interests of his clients, above his fundamental professional duty to act honestly. He repeatedly, deliberately chose to mislead the ATO. No credit can be taken by the First Applicant for ceasing his practice of lodging returns with what he knew to be false information, and making false declarations, after he was “caught” by the ATO. 
57.	Secondly, the repeated assertion that the funds (once audited) were shown to have complied with the tax laws is legally questionable and, in any event, misses the point. Part of the tax law is that a SMSF has to have been audited prior to the lodgement of its return. That had not occurred and the returns lodged, by claiming that they had been audited, were materially wrong. The claim, therefore, that the funds had complied with the tax law is not correct. More fundamentally, however, the core issue with the First Applicant’s behaviour is not whether the SMSF had complied with the relevant legislation, it was that he was lodging returns which he knew to be falsely claiming that the funds had been audited and was making false declarations to the ATO that they had been audited.
58.	Thirdly, the Tribunal does not find the claims of remorse particularly convincing. There was clearly no remorse for the nine years that the First Applicant chose to act dishonestly. This was not a case of a momentary lapse of judgment, this was a deliberate choice made on 125 occasions over a nine-year period and it appears that this dishonesty only stopped because the deception and the making of the false declarations was discovered by the ATO. The Applicants’ submissions, both written and oral, claim that the Applicants, in particular the First Applicant, are not trying to minimise what has occurred. For instance, the Applicants’ counsel’s closing submissions in dealing with the First Applicant’s response to the Board’s letter of 7 November 2019 about the funds not being audited as claimed submitted:
… There’s no – in my submission, no question he’s minimising what has occurred. What he’s pointing out is a truism that it is limited – the falsity is limited to the date of the audit. He accepts it was a mistake to do so. He points out the accuracy of the returns. And in my submission, pointing out the accuracy of the returns both acknowledges implicitly the importance of ensuring that they were audited, but also expressly notes that albeit that there was misleading conduct that was done, it did not ultimately result in any tangible loss to the Commissioner.
59.	Counsel’s submission that “the falsity is limited to the date of the audit”, in the Tribunal’s view, mischaracterises and downplays what it is that the First Applicant did. This was not a clerical error where a wrong date was inserted, it was a calculated misrepresentation that the audit had been completed and false declarations on 125 occasions. These misrepresentations and false declarations were made in the full knowledge of the legal significance of the need for audits to be completed prior to lodgement of the returns and the legal consequences that flow if they are not.   
60.	Similarly, the First Applicant’s responses to the Board during the investigation tried to minimise the dishonesty of his behaviour. For instance, the second paragraph in point 1 of the First Applicant’s letter dated 28 November 2019 (the response to the Board’s letter of 7 November 2019) asserts that:
The only incorrect item shown on the income tax return was the date of the audit. The auditor’s name was correct as Lucy Gardner was the auditor of the funds. 
61.	That letter, in conclusion, also makes the following claims:
3.	the lodgement of the income tax returns has been necessitated by the ATO requirements for lodgement and to ensure income tax and associated tax liabilities such as Division 293 are paid on time.
4.	the percentage of funds lodged prior to audits being completed is a minor percentage or our total funds.
…
6.	we take great pride in the quality and correctness of our work. The audit reports issued subsequent to the lodgement of the income tax returns confirms our competency to provide these tax agent services on behalf of our clients. Furthermore, we have had hundreds of audits performed by Butler Settineri over 28 years and the have never had anything but praise for the quality and accuracy or our work and the compliance of our funds with Taxation and Sis Legislation.
62.	To describe the systemic lodgement of tax returns which falsely represented that audits had been completed (knowing the significance of the requirement to complete the audit prior to lodgement), and the making of false declarations that audits had been completed as the only “incorrect item” being “the date of the audit”, clearly tries to downplay the First Applicant’s conduct. It was not simply an incorrect date. It was a deliberate and legally significant misrepresentation as to the completion of the audits and involved the making of false declarations.
63.	It does appear that the First Applicant may have become more accepting of his wrongdoing when he was contacted by the Board on 21 January 2020. The record of contact records the First Applicant as having admitted that he “[did] the wrong thing”, although there is no description of what “the wrong thing” was. It was submitted by counsel for the Applicants in closing that, when read as a whole, that record of contact demonstrates that “… Mr Cross is accepting responsibility from a very early stage about the seriousness of what he’s done and the wrongness of what he’s done”.
64.	Even if counsel’s submission that by February 2020 the First Applicant was accepting of his wrongdoing is correct, it appears that by March 2020 the First Applicant had reverted to the position of denying any substantial wrongdoing or dishonesty. In his letter dated 31 March 2020 to the Board the First Applicant said:
I contest each of the following allegations, namely:
1.	That I have not acted competently.
2.	That I have not acted honestly and with integrity.
3.	That I am not a fit and proper person.
…
… In respect of the allegations, I emphasise that the only incorrect information in the income tax returns lodged was the date the audits had been completed.
65.	The balance of that letter of 31 March 2020 repeats the responses that the First Applicant had given in previous letters to the Board that the subsequent audits of the relevant funds disclosed that the First Applicant “had ensured that the funds have complied with the taxation system”. He asserts in that letter that:
The fact that every audit completed by the auditors has confirmed that both all of the financial statements, income tax returns have been true and correct and the funds have complied with all of the SIS Legislation is the main requirements of the Australian Taxation Office.
66.	Not only is that claim wrong the tax returns were not true and correct, (they incorrectly asserted that the funds had been audited and contained a false declaration by the First Applicant,) it also disregards the reasonably fundamental requirement on tax agents not to deliberately mislead the ATO. The consideration identified by Hill J in Stasos (see [50] above) of the ATO and the Board being able to deal with tax agents in an atmosphere of mutual trust seems to be absent from the First Applicant’s considerations.
67.	That letter of 31 March 2020 doubles down on the First Applicant’s argument that he had not really done anything significantly wrong. He said in that letter:
It is alleged that I may not be a fit and proper person, particularly as my response to the Board was that the only issue was the incorrect date on the return.
I do understand that it is significant to have had the incorrect date on the returns and have advised that it will not occur again and have taken a significant step in 2019 to change auditors which has already made a huge difference in reducing the time to have audits completed and consequently resolve a significant problem I had.
68.	This demonstrates a lack of understanding or acceptance of the fundamental problem with what the First Applicant had done. The issue was not that he had lodged returns out of time (now supposedly addressed by appointing new auditors) or been sloppy in completing the returns with an incorrect audit date, the issue was that he had deliberately misled the ATO as to the completion of the audits of the funds and made false declarations. He then goes on to assert that:
The independent auditors on all of the audits completed to date have confirmed every fund in every year has complied with all taxation and superannuation legislation.
There has been no problem with the conduct of the funds.
I believe this confirms I have maintained the integrity of the taxation system as all income tax returns lodged have been verified by the auditors to be true and correct for all audits that have completed.
…
In addition, by lodging returns when possible to comply with the Australian Taxation Office requirements has ensured taxation liabilities have been met earlier than would otherwise be the case and hence I believe this has upheld the integrity of the taxation system.
…
For all funds the returns have been prepared correctly in respect of income/expenses. Having said this, I do appreciate that I have erred in respect of the audit dates and as stated, I will ensure that this will never happen again and have taken steps to ensure this.
69.	It should be fairly obvious that a basic tenet underpinning the integrity of the Australian taxation system is that, firstly, SMSF must be audited prior to the lodgement of the tax returns and, secondly, and more fundamentally, as noted by Hill J, that the ATO must be able to trust that the tax agents with whom it deals are acting with honesty and integrity. That was not the case with the Applicants, particularly the First Applicant.
70.	It appears that by the time the Applicants filed their SFIC in June 2020 there had been a change in approach. Notwithstanding the First Applicant’s denials in the 31 March 2020 letter set out in [64]–[68] above, by June 2020 the Applicants were stating that:
12.	The Applicants have acknowledged that the lodgement of 125 Superannuation Fund Income Tax Returns under certificate that these funds had been audited prior to lodgement was false, and providing the name of the auditor and date of audit was dishonest and contrary to the provisions of the Code under s 30-10(1) and under s 30-10(7).
13.	The Applicants do not, in any way, contest the requirement to act with honesty and integrity as identified by Hill J in Stasos … and acknowledge their duty and responsibility to act with honesty and integrity and to provide tax agent services competently.
71.	It is not clear where or how the Applicants had made the acknowledgment claimed in para 12 of their SFIC. Less than three months earlier the exact opposite was the case. Far from acknowledging dishonesty and lack of integrity, the Applicants were, in their 31 March 2020, specifically denying that that was the case. 
72.	The First Applicant filed his statement of evidence in these Tribunal proceedings in August 2020. He commences his statement of evidence with the statement that:
1.1	I admit that I lodged 125 income tax returns of Self-managed superannuation funds (SMSF) stating in each case that an audit and been completed when that was not true.
1.2	I am fully aware that the decision to do this in those matters was not in accordance with my duties as a registered tax agent and am extremely remorseful for my actions. I am fully appreciative of the significance of what I have done and accept responsibility for it.
73.	At the conclusion of the First Applicant’s evidence in chief, the following exchange took place:
COUNSEL:		Do you understand the significance of making a false 					statement to the Commissioner of Taxation?  
FIRST APPLICANT:	One-hundred per cent.
COUNSEL:		What do you understand the significance of that to be?  
FIRST APPLICANT:	It’s exactly that. It’s a false statement and so I have been 					dishonest in that respect.
COUNSEL:		What effect might being dishonest to the Commissioner					have on the system of taxation?  
FIRST APPLICANT:	It can affect the integrity of the taxation system. Each of 					those aspects I spoke about I think can affect the integrity of 				the tax system.
COUNSEL:		How?  
FIRST APPLICANT:	If returns are incorrect and the liabilities are incorrect, the 					SIS regulations, if funds aren’t complying and the third 					aspect is that the audits that the Commissioner does rely on 				the auditors, you know, it having been audited, me making – 				it relies on me as the tax agent having made a true 						statement that it has been audited on that date.
74.	As Senior Member Taylor SC in Hill observed at [110] (see [52] above), where integrity has been called into question by past dishonesty, contemporary good character and fitness must be assessed with a degree of scepticism. Regret about the consequences of discovered dishonesty is not the same as insightful determination and capacity to avoid future misconduct.
75.	In the present case the Tribunal is sceptical about the genuineness of the Applicants’ acceptance of responsibility and contrition. The initial reaction of the Applicants was to downplay the gravity of the making of the false declarations by repeatedly asserting, as late as 31 March 2020, that the only thing that they did wrong was to lodge returns with an incorrect audit date (see [64]–[68] above). That is a mischaracterisation of the Applicants’ conduct (or a lack of understanding of the significance of the Applicants’ conduct) in lodging 125 false tax returns with false declarations over a period of nine years. Further, that dishonest conduct only stopped once the ATO raised the falsity of the returns and declarations with the Applicants. It is hard to believe that it was only sometime after 31 March 2020 that the First Applicant was able to understand that lodging 125 false tax returns and making 125 false declarations was “significant” and had the potential to “affect the integrity of the taxation system” (see [73] above).
76.	Having regard to all of the evidence, the Tribunal is not satisfied that the First Applicant is of good fame, integrity and character, and accordingly whether the First Applicant is a fit and proper person to act as a registered tax agent. The facts that lead the Tribunal to this conclusion include:
(a)	the sheer number of misleading returns and false declarations made by the First Applicant and the very extended period over which that conduct occurred; 
(b)	the failure of the Applicants to acknowledge that their conduct lacked integrity and honesty, or alternatively, an apparent lack of awareness in the responses provided by the Applicants to the Board’s investigation;
(c)	the fact that it was not until the ATO started raising issues in 2019 about the returns being lodged by the Applicants that they ceased the practice of lodging misleading returns and making false declarations. There seemed to be no appreciation on the part of the First Applicant, until it was pointed out, that what he was doing was fundamentally dishonest. Alternatively, if the First Applicant did appreciate that his conduct was dishonest, he chose to continue anyway; and
(d)	the lack of any genuine contrition on the part of the First Applicant. What the First Applicant has expressed, and then only belatedly, is, as Senior Member Taylor SC described it in Hill (see [52] above) “Regret about the consequences of discovered and sanctioned past misconduct” rather than “... insightful determination and capacity to avoid future misconduct”. 
77.	The First Applicant, accordingly, is subject to having his registration terminated under s 40-5(1)(b) as he ceases to meet the requirement for registration as a tax agent under s 20-5(1)(a), namely, to be a fit and proper person. For the reasons set out above, the Tribunal’s view is that it is appropriate that the First Applicant’s registration be terminated. In any event, having ceased to meet one of the requirements for registration, it is difficult to see that any other course is appropriate. The First Applicant being found not to be a fit and proper person also causes the Second Applicant to be subject to termination of its registration under s 40-10 as the Second Applicant will no longer meet the registration requirement of each partner being a fit and proper person (s 20-5(2)(a)(ii)). 
Is a sanction under ss 30-15 and or 30-30 of TASA appropriate?
78.	Before the Tribunal considers what the appropriate sanctions under ss 40-5(1) and/or 40-10(1) are, or the period (if any) under s 40-25 during which the First Applicant, may not apply for registration, it is necessary to consider what, if any, other sections under TASA may have application.
79.	As noted above, although neither party made any submissions on the section, both Decisions also terminated the Applicants’ registrations under s 60-125(2)(b)(ii) of TASA. For the reasons set out in [42] above, there may be practical difficulties with terminating the Applicants’ registration under that section. However, as noted at [42] above one of the options open to the Tribunal, exercising all of the powers of the original decision maker (see [39] above) would be under s 60-125(2)(b)(i) to impose one or more sanction under Subdivision 30-B which includes, amongst other things, terminating the Applicants’ registrations. As further noted at [39] above, even though it was not relied on by the original decision maker, the Tribunal, exercising all of the powers of the original decision maker, could also impose a sanction or sanctions under s 30-15 of TASA without relying on s 60-125(2)(b)(i). The Applicants have conceded, rightly, that they breached the Code. As the Board has conducted an investigation under Subdivision 60-E, the Tribunal is empowered to impose one or more of the sanctions set out in s 30-15(2) which includes termination of the Applicants’ registrations under s 30-30. 
80.	The Applicants have made submissions on termination of registration under s 30-30 of TASA. The Applicants refer to the decision of the Tribunal in SHTX and Tax Practitioners Board (SHTX) which, at [21], sets out the provisions of the Explanatory Memorandum to the Bill (the EM) and the intention of TASA to provide “a wide range of sanctions allows the Board to tailor its response according to the severity of the misconduct”.
81.	The EM notes that:
170.	The sanctions available to the Board allow the Board to tailor the sanction to the seriousness of the conduct that breaches the Code. The purpose of the sanctions is not primarily to punish tax agents and BAS agents, but rather to improve the performance of agents and maintain public confidence in agents' adherence to certain standards.
172.	The graduated range of sanctions provides the Board with the capacity to tailor its response to the severity of the breach of the Code. For instance, in the case of isolated mistakes, the Board may take no specific action, or issue a written caution. For repeated mistakes the Board may issue an order specifying that the tax agent or BAS agent must undertake further education or training in the particular area. In more severe cases, where a tax agent or BAS agent has displayed a serious disregard for the Code, suspension or termination of registration may be appropriate. This is particularly so where a tax agent or BAS agent causes serious damage to their clients, or to the integrity of the tax system. Behaviour that calls into doubt the honesty, integrity or competence of a tax agent or BAS agent, or raises questions about their suitability to practise, may warrant more severe sanctions such as suspension or termination of registration.
82.	The First Applicant’s conduct falls into the final category described in para 172 of the EM. His breaches of the Code were “severe” and deliberate. It is difficult to see what utility an order to undertake further education would achieve. The First Applicant conceded in examination that he knew that filing misleading tax returns and making false declarations was dishonest and contrary to the Code and that such conduct “can affect the integrity of the taxation system” (see [35] and [73] above). His behaviour was not the result of a lack of understanding of what was required of him which could be addressed by further education. There is no question that his behaviour calls into doubt the good fame, integrity and character of the First Applicant to act as a tax agent. In the circumstances the highest sanction, that of terminating registration, is appropriate.
83.	In considering what sanction was appropriate, Senior Member Redfern in Li at [73]–[74] observed:
73. In Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004-5) 220 CLR 129 at 155, McHugh J commented on the nature of disqualification proceedings and noted that the jurisdiction under the Corporations Act 2001 (Cth) could not be properly characterised as “purely protective”. While the central issue in the case was whether the privilege against exposure to penalties and forfeitures was available to the defendant in civil penalty proceedings, McHugh J cited with approval the principles set out in the decision of Santow J in Australian Securities and Investments Commission v Adler and ors (2002) 42 ACSR 80; [2002] NSWSC 483 at [55]–[56]. In that case, Santow J helpfully set out the guiding principles to be taken into account when the disqualification of a director is being considered. These principles have subsequently been adopted in a number of disqualification cases unrelated to directors’ duties.
74. In Adler Santow J identified the factors relevant to disqualification. I am of the view that these matters are similarly relevant to my consideration of whether termination is appropriate in the circumstances of this case and, if so, whether disqualification of Mr Li from re-applying for registration for a period of three years is also appropriate. The factors referred to by Santow J, that would also be relevant to this case, can be summarised as follows:
(i)	banning orders are designed to protect the public from the harm;
(ii)	the banning order is protective against present and future breach;
(iii)	a banning order has a motive of personal deterrence, though it is not punitive;
(iv)	the objects of general deterrence are also sought to be achieved;
(v)	in assessing the fitness of a person to be permitted to provide tax agent services, they have an understanding of their role and obligations;
(vi)	in assessing an appropriate length of prohibition, consideration has been given to the degree of seriousness of the contraventions, the propensity that the defendant may engage in similar conduct in the future and the likely harm that may be caused to the public;
(vii)	longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty;
(viii)	it is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the conduct;
(ix)	a mitigating factor in considering a period of disqualification is the likelihood of the defendant reforming;
(x)	it is necessary to assess matters such as the character of the person, the nature of the breaches, risks to others from the continued registration of the person; and
(xi)	factors which lead to the imposition of the longest periods of disqualification include large financial losses, high propensity for the person to engage in similar conduct and lack of contrition or remorse.
84.	The Tribunal agrees, for the same reasons set out by Senior Member Redfern, that the principles enunciated by the courts in the above cases apply in considering termination or suspension of a tax agent’s registration under TASA. 
Findings
85.	For the reasons set out above the Tribunal finds that the First Applicant is not a fit and proper person for the purposes of s 20-5(1)(a) of TASA. Accordingly, the First Applicant ceases to meet the requirements for registration. For the reasons set out above, in particular the seriousness of the First Applicant’s conduct, the Tribunal is of the view that it is appropriate to terminate the First Applicant’s registration under s 40-5(1) of TASA.
86.	The Tribunal is also of the view that, given the nature and seriousness of the First Applicant’s conduct and his lack of insight into or contrition for his conduct, a period of two years during which the First Applicant may not apply for registration is appropriate.
87.	Given the Tribunal’s finding that the First Applicant is not a fit and proper person, the Second Applicant ceases to meet one of the registration requirements of a partnership, namely that each partner be a fit and proper person, and for the reasons set out above it is appropriate to terminate the Second Applicant’s registration under s 40-10(1)(a) of TASA. As with the First Applicant, given that the Second Applicant no longer satisfies the requirements for registration, it is difficult to see how anything other than a termination or a suspension would be appropriate. Given the seriousness of the First Applicant’s conduct, termination of registration of the Second Applicant is the appropriate course.
88.	The Tribunal is also satisfied that, after the investigation conducted under Subdivision 60-E, the First Applicant and the Second Applicant, failed to comply with the Code. Given the sheer number of breaches of the Code, the nature of the dishonesty and lack of integrity that those breaches involved, as well as the lack of any true contrition on the part of the First Applicant, the appropriate course is to terminate the Applicants’ registrations under s 30-30 pursuant to s 30-15(2)(d) of TASA.
89.	The Tribunal also finds that, there having been an investigation under s 60-95 that disclosed breaches of TASA, the Tribunal must take one of the actions prescribed by s 60-125(2) and that, in the circumstances, the appropriate course is to impose a sanction under Subdivision 30-B of TASA, specifically, to terminate the Applicants’ registrations under s 30-30 pursuant to s 30-15(2)(d).
90.	The Tribunal is mindful that the termination of the Applicants’ registrations is likely to have significant financial impacts on the First Applicant, the Second Applicant and on Ms Adamson. In particular the Tribunal acknowledges the matters set out in the Applicants’ SFIC at paras 22–26 as to the impact on the First Applicant and Ms Adamson of termination, and the matters in paras 27–38 as to the impact, financial, reputational and potentially health-related impacts of termination of registration on the First Applicant. The Tribunal also acknowledges that the termination of the registration of the Applicants is going to have an impact on the clients and employees of the Applicants, in particular the Second Applicant. These impacts were considered in the Stay Decision and the Tribunal repeats its observations made at [61]–[63] of that decision. Notwithstanding the consequences that the termination of the Applicants’ registrations will have on the Applicants, Ms Adamson, the clients and employees of the Second Applicant, given the seriousness and nature of the First Applicant’s conduct and his breaches of the Code, termination of registration is the correct or preferable course.
91.	As noted above, the parties made submissions on the standing of the Second Applicant, including its ability to institute and maintain an application before the Tribunal. The conclusion drawn by the Applicants was that, by operation of s 45 of the Partnership Act the Second Applicant was, in effect, dissolved by the termination of its registration. The Applicant’s submit, however, that notwithstanding that, the Second Applicant, or each of the partners, has authority to continue with the proceedings “… so far as may be necessary to wind up the affairs of the partnership…” and that therefore “… it is appropriate, and necessary, that the Second Applicant bring the current proceedings before the Tribunal …”.
92.	In the end, the practical affect decision in this matter is that the Second Applicant’s registration will remain terminated, and the issue of whether the Second Applicant has standing to maintain the proceedings becomes academic.
93.	With one minor variation, the Tribunal is of the view that the Decisions were the correct and preferable decisions and that that remains the case. The one minor variation that the Tribunal would make to the Decisions is that the election to terminate the Applicants’ registrations under s 60-125(2)(b)(ii) be changed to a decision under s 60-125(2)(b)(i) to impose a sanction under Subdivision 30-B, namely to terminate the Applicants’ registrations under s 30-30 pursuant to s 30-15(2)(d) of TASA.
decision
94.	For the reasons set out above the Tribunal varies each of the Decisions by deleting “s 60-125(2)(b)(ii)” and substituting therefor “s 60-125(2)(b)(i) by terminating the registration under s 30-30”. 

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle	
.....[SGD]...................................................................
Associate
Dated: 9 March 2021

Date of hearing:	26 October 2020	
Counsel for the Applicants:	Mr S Vandongen SC	
Solicitors for the Applicants:	Sceales Lawyers	
Counsel for the Respondent:	Mr M Crowley	
Solicitors for the Respondent:	Tax Practitioners Board