Chapter 2
Issues raised about the bill
2.1
None of the submissions or witnesses called for the Senate to
reject the bill, or opposed its intent. Indeed, most wanted it passed as a
matter of urgency:
I implore the committee to assist in having this legislation passed
as a matter of urgency.[1]
Our intention is to see the new regime instituted and
established as soon as possible.[2]
2.2
However, some submissions and witnesses had various comments or
concerns on detailed points. There were a few repeated concerns, and a number
of smaller points requiring clarification. These may be best resolved by
guidelines being issued by the Tax Practitioners Board once the bill is passed.
The meaning of ‘relying on the service’
2.3
Under clause 90-5 a ‘tax agent service’ (which requires the agent
to be registered) is a relevant service which ‘is provided in circumstances
where the entity [recipient] can reasonably be expected to rely on the
services...’.
2.4
The Institute of Chartered Accountants (ICA) had concern about
the interaction between this and the registration provisions:
We submit that it is unclear as to when an entity that is
engaged to provide ‘outsourced’ services to a registered tax agent will
themselves be required to register as a tax agent. This arises because there is
uncertainty as to when an entity (ie the client whose tax obligations are the
subject of the service) can ‘reasonably be expected to rely on the service’
that is provided by the outsourced service provider.[3]
2.5
The concern applies particularly in relation to service trusts.
The ICA referred to example 4.4 in the explanatory memorandum. In the example a
service trust did outsourced work for a tax agent in circumstances where it was
reasonable to expect that the tax agent would rely on the work; accordingly, at
least one of the trustees of the trust would have to be registered. The ICA
submitted that this is an impractical outcome:
In practice it is likely that there will be prohibitive
commercial reasons for which professional services firms will not be able to
obtain registrations for the trustees of their service trusts.... we submit that
Example 4.4 in the EM should be amended to reflect the ‘agent’ relationship
between a partnership and the service trust, and accordingly should reach the
conclusion that the service trust is not required to register as a tax agent. [4]
2.6
There was some discussion about whether this example contradicted
example 2.5, in which a third party did not have to be registered to do
outsourced work.[5]
Treasury submitted that there was no contradiction, as the different examples
described different situations: one in which it was reasonable to expect that
the recipient would rely on the service; the other in which it was not. Whether
the taxpayer knows that work is being outsourced is not directly a test of
whether a third party needs to be registered, but it may be relevant to
deciding whether the third party’s work is done ‘in circumstances where the
entity can reasonably be expected to rely on the service.’[6]
2.7
Treasury submitted that the requirement to register stems from
the type of services being provided and the circumstances in which they are
provided, rather than the class of people providing them:
We submit that this approach is the most logical and pragmatic
way to ensure optimal regulation (and therefore consumer protection) at the
minimum cost.[7]
Committee comment
2.8
The Committee acknowledges that it is logical that the
requirement to register stem from the type of services being provided and the
circumstances in which they are provided, rather than the class of people
providing them. The committee recommends that the government’s post-implementation
review report on the operation of this clause.
The definition of ‘BAS service’
2.9
Under clause 90-10 ‘BAS services’ are a subset of ‘tax agent
services’, being tax agent services that relate to Business Activity Statement
(BAS) provisions.[8]
The Association of Taxation and Management Accountants submitted that the
definition is too wide:
It is not limited to the preparation of a BAS return, but also
allows BAS agents to provide advice on complex indirect taxes such as GST for
which they do not have the required technical expertise. Advice on any other
tax law or matter can only be given [by] a registered tax agent or legal
practitioner.[9]
2.10
The Australian Association of Professional Bookkeepers (AAPB) was
concerned about comments in the explanatory memorandum which imply that data
entry and similar tasks which ‘simply require an individual to follow
instructions or transfer data onto a computer program’ are not BAS service
(since they do not involve ascertaining the taxpayer’s tax liabilities). The
AAPB thought that this was too narrow, since most bookkeepers perform not ‘data
entry’ but rather ‘data processing that requires a level of skill and some
knowledge’ (for, example, in deciding how to code tax invoices).[10]
2.11
The AAPB argued that talking down the scope of BAS service ‘is
creating a grey area and providing bookkeepers with an opportunity to
relinquish their responsibilities and legal obligations by arguing “I am only
doing data entry not GST”‘. The AAPB submitted that there needs to be more
clarity on what typical bookkeeper activities would or would not be ‘BAS
services’.[11]
2.12
Treasury responded that there are differences of opinion among
stakeholder groups as to what extent typical bookkeeping activities are making
decisions or merely ‘following a script’; but in any event the definition of ‘BAS
services’ does not involve any particular opinion about this: bookkeepers will only
need to be registered if their activities satisfy the definition.[12]
2.13
On the question of whether all bookkeepers should be registered
(including those who are not doing ‘tax agent services’ as defined), Treasury
commented:
They are not connected to a tax decision and so it is very
difficult to extend the tax bill to doing that. Secondly, we would turn the
potential registration from 10,000 to 15,000 to 100,000 to 150,000, and there
would be concomitant questions around the difficulty of what to do with
employee bookkeepers and so on. From the consultations that I have undertaken
with industry—and I know there are split views on it—I felt that the balance of
view was that it would be very expensive indeed to require all of those people
who are only loosely connected with the actual tax decision to become
registered.[13]
Committee comment
2.14
In the committee’s view clarifying what bookkeeping activities
are or are not BAS services as defined is an appropriate matter for guidelines
from the Board.
Requirements for registration
2.15
The requirements for a person to be registered as a tax agent or BAS
agent are in the draft regulations. Several alternative tests are detailed: for
example, a BAS agent may satisfy with either listed accounting or bookkeeping
qualifications or work experience.[14]
2.16
Submissions on the requirements for registration included:
- allowing Certificate IV Financial Services (Accounting) as a
qualification for BAS agents is inappropriate as that course is inadequate as a
bookkeeping qualification - Certificate IV Financial Services (Bookkeeping) should
be required;[15]
- it is unclear what a ‘course in basic GST/BAS principles’ means;[16]
- the BAS agent work experience test requiring 1400 hours of
relevant experience in the previous three years is too onerous, particularly
for part-time workers;[17]
- the work experience test, read with the provisions about
recognised professional associations (RPAs), is defective. The work experience
test (for both tax agents and BAS agents) requires the person to be a voting
member of an RPA; but the association, to become an RPA, would not be able to
admit a person unless the person was a registered tax agent in 1988.[18]
The effect is that the work experience test is only available to people who
were registered tax agents in 1988, which is unreasonable.[19]
2.17
In response to the first point above, Treasury submitted that the
qualification level for bookkeepers is ‘about right’, noting that demanding
higher qualifications would cost more.[20]
2.18
For companies, clause 20-5(3)(d)(i) provides that the company
must have a sufficient number of registered individuals ‘to provide tax agent
services to a competent standard and to carry out supervisory arrangements.’
H&R Block argued that the elaboration in the explanatory memorandum goes
further than the bill warrants, with Paragraph 2.56 suggesting that the
registered individuals need to be placed in ‘supervisory or management
positions’. H&R Block is concerned that ‘the EM requirement will mean we
cannot continue to operate as we currently do, with our management team as the
majority are not Registered Tax Agents’.[21]
2.19
R&D consultants and quantity surveyors had special concerns
about the registration tests which are considered below.
Committee comment
2.20
The Committee draws the Government’s attention to what it regards
as reasonable concerns expressed about the work experience test.
2.21
In the committee’s view clarifying what arrangements would ensure
that a company can ‘provide tax agent services to a competent standard etc.’ is
an appropriate matter for guidelines from the Board.
Concerns of R&D consultants and quantity surveyors
2.22
There were many submissions from research and development (R&D)
consultants, and a submission from the Australian Institute of Quantity Surveyors,
arguing that the requirements for registration are inappropriate for them. For
example:
Our understanding has been that one did not need to be a
registered tax agent to offer services in respect of the Tax Concession for
R&D... the focus of our work is the identification and description of
eligible R&D activities... We were thus surprised to discover in the
Explanatory Memorandum... that, in part, our services were to be described as tax
agents services...[22]
2.23
R&D consultants argue that the registration tests are
unsuitable for them since the formal qualifications tests refers to
qualifications that are irrelevant to their speciality; and there is no
recognised professional association to which they could belong to satisfy the
work experience test:[23]
While the majority of us are tertiary qualified, few of us have
accounting qualifications that will enable us to be readily registered as tax
agents.
We also cannot be registered based on our experience as our
experience was not acquired under the supervision of a registered tax agent.
We cannot obtain voting membership of any of the 7 recognised
professional associations (RPAs) as we are not accountants or lawyers.
Membership of an RPA may be achieved by the successful
completion of a course of study in accounting and tax but such courses
obviously take time to complete and are of little relevance to the services we
provide.[24]
2.24
Similarly, the Australian Institute of Quantity Surveyors was
concerned that ‘members may have to return to education to study for a tax
qualification which is mostly irrelevant to the knowledge they require to do
their current depreciation tasks...’.[25]
2.25
The Fourth Wave (Australia) submitted that ‘the situation in
which R&D consultants now find themselves will be repeated as the coverage
of the tax act expands...’:
A case in point are programs associated with climate change...
should the concept of a carbon footprint make its way into the tax act, the
environmental scientists will find themselves in the same position as R&D
consultants today.[26]
2.26
Michael Johnson Associates submitted that making life harder for
R&D specialists will increase the problem of poor R&D advice by tax
agents with little R&D experience.[27]
2.27
R&D consultants suggested alternative registration tests:
- for existing practitioners: a tertiary degree, diploma or
certificate; and certain work experience; and certain commitments to further
professional development;
- for new entrants: a tertiary degree, diploma or certificate; and
approved courses in basic accounting principles, taxation law and commercial
law relevant to the limited registration sought (in this case, relating to
section 73A of the Income Tax Assessment Act 1936); and certain work
experience; and certain commitments to further professional development. [28]
2.28
The main differences between these proposals and the tests in the
draft regulations are that any degree, diploma or certificate would qualify: it
would not be at the Board’s discretion to require a degree which is relevant in
the Board’s judgment (as presently proposed in the ‘tertiary qualifications’
test); and a diploma or certificate would not have to be in accountancy (as presently
proposed in the ‘diploma or certificate’ test).[29]
2.29
Treasury responded that ‘the draft regulations will contain
educational qualifications and relevant work experience requirements that are
sufficiently flexible to accommodate specialist service providers such as
R&D consultants’.[30]
Treasury pointed out that the ‘tertiary qualifications’ registration test
allows for a degree approved by the Board in ‘another discipline [other than
accountancy] that is relevant to the tax agent services to which the application
relates’.[31]
Treasury argued that there is flexibility in the Board’s ability to make a
subject-limited conditional registration on this basis (clause 20-25(6)).[32]
Committee comment
2.30
The Committee draws the government’s attention to the concerns of
the R&D consultants and quantity surveyors that the registration tests may
be inappropriate for the circumstances of some. Reference to the Board’s
ability to make a conditional registration under clause 20-25(6) may not answer
the concern completely, since clause 20-25(6) does not change the registration
tests in the regulations. The ‘tertiary qualifications’ registration test does
include flexibility for the Board to accept ‘another relevant discipline’
(other than accountancy), but this would not answer the concerns of consultants
wishing to rely on the ‘diploma or certificate’ or ‘work experience’ tests.
However the committee notes the evidence that the majority of R&D
consultants are tertiary qualified.
Meaning of ‘supervision and control’
2.31
Under clause 50-30 a registered tax agent may sign off the work
of an unregistered person only if the other person was ‘under the supervision
and control’ of a registered tax agent. This condition does not apply if the
agent took ‘reasonable steps’ to ensure the accuracy of a document (clause
50-30(5)).
2.32
Submitters argued that the meaning of ‘supervision and control’
and ‘reasonable steps’ should be clarified. For example, the National Institute
of Accountants was concerned that their members might be required to audit work
outsourced to third parties even when the third parties are registered. It also
wanted clarification of how many registered agents a practice would need to
satisfy the requirement for supervision and control of other staff.[33]
2.33
The Institute of Chartered Accountants asked for assurance that
normal industry practices in auditing outsourced work (for example sampling,
test checking, self-audits) would amount to ‘reasonable steps’.[34]
2.34
The Law Council of Australia had concern that clause 50-30 seems
inconsistent with the references to legal practitioners in clause 50-5:
Paragraphs 50-5(1)(e) and 50-5(2)(d) continue the long
established exception that tax agent and BAS services, other than preparation
and lodgement of returns, can be provided by legal practitioners as legal
services without the need for the practitioner to be registered as a tax agent...
[on the other hand] the practical outcome of proposed subsections 50-30(1) -
50-30(4) will be that the ordinary position of a registered tax agent or BAS
agent engaging an Australian legal practitioner to provide an advice, opinion
or other legal services which might lead to the agent making a declaration or
statement in a particular way will expose the agent to penalty if the legal
practitioner is not also a registered tax agent or BAS agent. This outcome
would conflict with the policy expressed in proposed paragraph 50-5(1)(e) and
50-5(2)(d).[35]
Meaning of ‘reasonable care’ in the code of conduct
2.35
Under clause 30-10(9), in the Code of Professional Conduct, a
registered agent ‘must take reasonable care in ascertaining a client’s state of
affairs’. Submissions were concerned that ‘reasonable care’ needs
clarification. For example:
[there is] need for clarification in the Code of Professional
Conduct as to when a tax agent can rely on information provided by a client and
when the tax agent needs to seek confirmation of that information.[36]
Committee comment
2.36
The Committee suggests that the Board issue a guideline
clarifying the meaning of ‘reasonable care’.
Termination of registration on death
2.37
Under clause 40-5(2) of the bill the Board must terminate an
agent’s registration if the agent dies.
2.38
Submitters were concerned that there should be allowance for an
orderly transfer of a sole practitioner’s business. The Taxation Institute of
Australia suggested that ‘consideration should be given to allowing the Tax
Practitioners Board to have a discretion to permit a deceased practitioner’s
registration... to continue to be conducted under the control of another
registered tax agent pending the sale of the deceased practitioner’s business.’[37]
2.39
Treasury responded that the bill allows sufficient flexibility,
as registration cannot be terminated until at least 28 days after death, and
this can be a longer period.[38]
2.40
Some practitioners disagreed with Treasury’s interpretation of
the bill, believing it does not allow the Board any discretion.[39]
Committee Comment
2.41
The Committee suggests the Board issues a guideline to clarify
the arrangements applying to deceased agents.
Confidentiality of clients’ information
2.42
Under clause 30-10(6) (part of the Code of Professional Conduct),
a registered agent ‘must not disclose any information relating to a client’s
affairs to a third party without [the client’s] permission’.
2.43
The Institute of Chartered Accountants was concerned that the
examples in the Explanatory Memorandum imply that ‘explicit’ permission would
be required. The ICA argued that permission could be express or implied,
consistent with the Privacy Act 1988 and the general law.[40]
2.44
The Australian Association of Professional Bookkeepers is
concerned about the need for guidance to ensure that outsourcing arrangements
do not breach this provision.[41]
Committee Comment
2.45
The Committee suggests the Board issues a guideline to clarify
whether explicit permission is required to disclose information about a client
to a third party.
The Tax Practitioners Board
2.46
The industry believes that the Tax Practitioners Board will need
to be adequately funded and should be independent of the Australian Taxation
Office (ATO).[42]
The Board will comprise a chair and a minimum of six other members. The Institute
of Certified Bookkeepers emphasised that its membership should include members
of the BAS agent/bookkeepers community.[43]
2.47
It was also suggested that it could be advised by a consultative
committee of practitioners.[44]
Committee comment
2.48
The Committee believes the Board should be adequately funded,
independent of the Australian Taxation Office and have suitable arrangements to
be kept informed of the views of all stakeholders.
Investigations by the Tax Practitioners Board
2.49
Under subdivision 60-E the Board may investigate a person’s
conduct or other matters. The outcome may be that the Board imposes an
administrative sanction for failure to comply with the Code of Professional
Conduct (clause 30-15); terminates a registration; or applies to the Federal
Court for an injunction or an order for payment of a pecuniary penalty (clause
60-125).
2.50
Submissions argued that:
- personnel making disciplinary investigations under subdivision
60-E should not be sourced from the ATO;[45]
- ad hoc investigatory committees are not appropriate; [46]
and
- it is desirable to clarify the boundary between formal
investigation and the possible preliminary inquiries envisaged in the
explanatory memorandum.[47]
‘Safe harbour’ provisions
2.51
A ‘safe harbour’ provision means in effect that the taxpayer is
not liable to an administrative penalty if an infringement was caused by the
carelessness of the tax agent. Some submissions argued that tax agents should
be protected in the same way from defective work by BAS agents working for
them:
It is essential that ‘safe harbour’ provision be included for
registered Tax Agents who use a BAS agent to provide BAS services on their
behalf... This ensures that the Tax Agent is not penalised for any errors made by
a BAS agent...[48]
Committee comment
2.52
If a subcontractor is not registered, the issue is whether there
was adequate supervision and control (clause 50-30). The committee has noted
above that defining ‘supervision and control’ and ‘reasonable steps’ in clause
50-30 should be a matter for guidelines from the Board.
2.51 If the subcontractor is registered (whether as a tax
agent or BAS agent), there is no issue in relation to clause 50-30 (as only
unregistered third parties need to be supervised under this clause).
2.52 In either case there is a possible breach of the
Code of Conduct if there was not adequate supervision of the subcontractor
(clause 30-10(7): ‘You must ensure that a tax agent service that you provide,
or that is provided on your behalf, is provided competently’).
2.53 In the committee’s view the interpretation of clause
30-10(7) is an appropriate matter for guidelines from the Board.
2.54 The committee does not think it is appropriate to
give the tax agent, who is responsible to the client, general immunity from the
consequences of a subcontractor’s mistake. This would cut across the intention
of the provisions mentioned above.
Recognition of BAS agent associations
2.53
Under the draft regulations an organisation may apply to the
Board for recognition as a recognised professional association (RPA) or a
recognised BAS agent association. The status ‘recognised professional
association’ is involved in the work experience test for registration (under which
a person must be a voting member of an RPA). While the status of ‘recognised BAS
agent association’ appears to have no legal significance, the explanatory
memorandum suggests various ways in which it might have practical significance.[49]
2.54
Submissions on these provisions included:
- recognition of BAS agent associations should only be of those
which have enough members who are BAS agents (the present membership size test
for a BAS agent association is: at least 1,000 voting members or at least 500
voting members who are registered BAS agents. This could include an
organisation with at least 1,000 members and no BAS agent members);[50]
- there should be provisions to encourage agents to become members
of recognised BAS agent associations (currently they are not recognised
professional associations for registration purposes);[51]
and
- the minister or Board should be able to allow a smaller
membership size test for associations during the transition period.[52]
Role of the explanatory memorandum
2.55
The committee notes the unusual level of detail of the
explanatory memorandum in elaborating on the bill with examples. Some
submissions argued that some matters mentioned in the explanatory memorandum
should have been clarified in the bill for greater certainty; or that in some
places the explanatory memorandum is inconsistent with the bill.
2.56
A court may use the explanatory memorandum as an ‘extrinsic
material’.[53]
The argument for including matters in the bill rather than the memorandum is
that:
Under the Acts Interpretation Act courts often do not get to the
EM. They read the law and say, ‘The law is clear.’[54]
2.57
Treasury responded that it is satisfied that the elaborating
material in the explanatory memorandum is consistent with the true meaning of
the bill.[55]
Education
2.58
The Institute of Certified Bookkeepers thought that many bookkeepers
may be doing BAS work to an extent not permitted by the current law without
registering as a tax agent. It stressed the need for an education campaign
about the use of registered agents and what activities require an entity to be
registered.[56]
Professional indemnity insurance
2.59
Most bookkeepers do not hold professional indemnity insurance.[57]
Under clause 20-30(3) the Board ‘may’ require a registered agent have
professional indemnity insurance. Mr Peter Davis argued that this should be
mandatory, not discretionary.[58]
Treasury explained that the provision is so worded to allow for the fact that
the Board may not need to require professional indemnity insurance for some
agents who already have insurance required by some other law.[59]
General committee comment
2.60
The Committee notes that the bill is the outcome of a long
stakeholder consultation and stakeholder groups are keen for the bill to be
passed. The Committee considers that the matters of detail raised in
submissions can and should be handled in guidelines by the new Tax
Practitioners Board.
2.61
The Committee stresses the need for communication and education
so that those who need to be registered do register. This applies particularly
to BAS agents and bookkeepers who have not previously needed to be registered.
Recommendation
2.62
The Committee recommends that the Senate pass the bill.
Senator Annette Hurley
Chair
Navigation: Previous Page | Contents | Next Page