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RE ELLIS AND TAX AGENTS' BOARD OF QUEENSLAND

Members:
SA Forgie DP

Tribunal:
Administrative Appeals Tribunal

Decision date: 10 December 1991

SA Forgie (Deputy President)

On 25 March, 1991, the Tax Agents' Board (``the Board'') considered an application by the applicant, Mr Eric Ellis, for registration as a tax agent. The Board resolved that he had not been engaged in relevant employment as required by paragraph 156(1)(c) of the Income Tax Assessment Regulations 1936 (``the Regulations''). It is from that decision that Mr Ellis lodged an application for review on 17 April, 1991.

2. At the hearing, Mr Ellis represented himself and Mrs Patsy Wolfe of counsel represented the Board. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (``the AAT Act'') were admitted in evidence together with an affidavit of Bernadette Maree McCormack sworn on 2 October, 1991 and a statement of Mr Ellis. Evidence was given by Mr Ellis and Miss McCormack.

ATC 2002

The Legislation

3. Before considering the evidence, I will set out the legislation which is relevant. Section 251JA of the Income Tax Assessment Act 1936 (``the Act'') deals with the original registration of tax agents. Paragraph 251JA(1)(a) provides that:

"The Board shall register the applicant as a tax agent if the applicant satisfies the Board that:

  • (a)...
    • (i) the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;"

What is meant by the expression, ``a fit and proper person'' is dealt with in sub-section 251BC(1). In so far as it is relevant, it provides:

"(1) Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:

  • (a)...
  • (b) both of the following conditions are satisfied:
    • (i) the person was not registered as a tax agent, or as a nominee, for the purposes of this Part immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No. 2) 1988;
    • (ii) the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed;
  • (c) the person has not attained the age of 18 years;
  • (d) the person is not of good fame, integrity and character;
  • (e) the person has been convicted of a serious taxation offence during the previous 5 years; or
  • (f) the person is under sentence of imprisonment for a serious taxation offence."

4. Regulation 156 of the Regulations prescribes the qualifications for the purposes of sub-paragraph 156(1)(b)(ii) of the Act. Various qualifications are prescribed but, in view of the fact that Mr Ellis holds a Diploma in Accountancy from the Perth Technical College, the relevant paragraph is 156(1)(c) as found by the Board. That paragraph provides:

``156(1)(c) the person:

  • (i) shall have completed the academic requirements for the award of a diploma or certificate from a college of technical and further education following a course of study in accountancy of not less than 2 years' duration of full-time study or 4 years' duration of part-time study;
  • (ii) shall have:
    • (A) been engaged in relevant employment on a full-time basis for not less than a total of 2 years in the preceding 5 years;
    • (B) otherwise been engaged in relevant employment to an extent that the Board regards as equivalent to that referred to in sub-subparagraph (A); or
    • (C) been engaged in such other employment and for such time as the Board regards as equivalent to being engaged in relevant employment as referred to in sub-subparagraph (A); and
  • (iii) shall have, by written examination, successfully completed a course of study in Australian income tax law acceptable to the Board.''

5. Sub-regulation 156(2) provides that:

"In this regulation `relevant employment' means employment by a person or a partnership or as a member of a partnership in the course of which there has been substantial involvement in income tax matters including:

  • (a) the preparation or examination of a broad range of income tax returns;
  • (b) the preparation or examination of objections to assessments issued in respect of such returns; and
  • (c) the provision of advice in relation to income tax returns, assessments or objections."

6. There is no dispute between the parties that Mr Ellis has satisfied sub-paragraph 156(c)(iii) as well as (i) and the only dispute between them relates to whether or not he satisfies (ii). If he is to succeed in his

ATC 2003

application, Mr Ellis must satisfy all three requirements for the requirements of those three sub-paragraphs are cumulative. Within sub- paragraph (ii), the requirements of sub- paragraphs (A), (B) and (C) are expressed in the alternative and I will consider each in turn.

Sub-paragraph (A)

7. Considering first, sub-paragraph (A), there is an initial question which presents itself and that is whether I am confined to a consideration of Mr Ellis's employment during the five years preceding the date of his application or whether I may consider his employment prior to that time. Mr Ellis argued in favour of the wider interpretation while Mrs Wolfe favoured an interpretation restricting it to a five year period. On the clear wording of the provision, I consider that I am not entitled to have regard to employment prior to the five year period. However, it is not so clear whether that five year period should be considered from the date of Mr Ellis's application, from the date of the hearing in this Tribunal or from some other date. Consideration was given to this type of question by the Tribunal in
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Mr Ballard, Senior Member and Dr Garlick, Member) in relation to an application for an invalid pension. The note of the case reads as follows at page N45:

"The Tribunal said that, on the facts, it was satisfied that T was permanently incapacitated at the date of the application. Even had this not been so, it was appropriate to take into account the events that had occurred after the application. These demonstrated that the possibility of recovery postulated then did not occur. The Tribunal also noted:

`As the director-general was authorised to grant a pension to Mr Tiknaz as from the date of entitlement without requiring the lodgment of a further claim form, so also the Administrative Appeals Tribunal, which is empowered by s43 to exercise all the powers and functions which are vested by the Social Services Act in the director-general, may do so if, in the course of the proceedings before it, it comes to the view that there was not entitlement at the date of application but that there was entitlement at a later date.'"

8. Since then, Tiknaz has been referred to in a number of cases both in the Federal Court and in this Tribunal but I will refer only to
Freeman v. Department of Social Security (1988) 87 ALR 506 (Davies J). That case concerned the review of a decision to cancel a widow's pension and, in the course of drawing a distinction between that type of decision and a decision to grant an entitlement, Davies J elaborated upon the principles in Tiknaz's case. He said at pages 509-510:

"The jurisdiction of the tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the tribunal's decision.

Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, Re Easton, Jebb's case and in McGourty's case, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the tribunal's decision.

However, in the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a

ATC 2004

pension as from 19 May 1987. After the decision in Re Tiknaz was handed down, the Act was amended by the insertion of ss158(2) and 159(2). Those sections provide that the grant or payment of a pension shall not be made except upon the making of a claim for that benefit or allowance, which claim is to be in writing and lodged in accordance with s158(1) and s159(1). One effect of these provisions is that once a pension or benefit has been cancelled, the previous recipient has no entitlement to restoration thereof until he or she has lodged a further claim in accordance with s158(1) and s159(1).

The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the tribunal should recognise when formulating its decision. However, if the tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19."

9. In this case, I am dealing not with an entitlement to an income maintenance benefit but with a registration to undertake certain specialised work. There is, however, no difference in the principles to be applied to each. Each is concerned with an entitlement. If an analogy be needed, it may be found in the case of a pilot's licence which is also a form of ``registration'' to undertake specialised work. Although the Tribunal focused more on the question of whether his application should be determined by the law at the date of the initial application or at the date of the hearing, it did say in
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 (Mr Hall, then Senior Member and Messrs Thompson and Marsh, Members) at page 944:

"In the present case, there is nothing in the relevant legislation which attributes any special significance, for the purpose of our review, either to the date of the application for a licence or the date of the Secretary's decision to refuse to grant the licence. Neither, in our view, are there any circumstances which have occurred giving the applicant any accrued right to have his application determined according to the law as it stood at the time when the application was lodged or when the Secretary's decision to refuse the licence was given. The question before us is simply whether the applicant satisfies us that he meets the required medical standard. That is a state of present satisfaction having regard to the present facts and circumstances and the present law."

10. In the case of registration as a tax agent, I can find nothing which attributes any particular significance to the date of the initial application or to the date of the hearing. I consider, therefore, that I am entitled to have regard to the five year period prior to the date of the hearing. That would mean that the period commenced in October, 1986.

11. I must now consider whether or not Mr Ellis has been engaged in relevant employment for the requisite time. What is ``relevant employment'' has been considered by this Tribunal in several cases and the principles which they consider are conveniently summarised in
Re Chenouda and Tax Agents' Board of NSW 91 ATC 2027 (Deputy President McMahon) and I am in agreement with the views expressed in that case. At pages 2030 to 2031, Deputy President McMahon said:

"17. The applicant referred to a passage in Crowley [Re Crowley and Tax Agents' Board (N.S.W.) 90 ATC 2005] at page 2010. The Tribunal there said-

`In addition there is no requirement that the substantial experience must be gained in the taxation section of a public accountant's office. It is not difficult to envisage factual situations where such substantial experience would be gained outside such employment, for example, experience gained in the taxation section

ATC 2005

of a large corporation or a trust company.'

18. I respectfully agree with the observations of the Tribunal and agree that there is no requirement in the regulations that relevant employment should be confined to the practice of a public accountant. Nevertheless, the employment gained in companies must be `relevant' as defined.

19. The general considerations to be addressed in applications of this nature were set out by Deputy President Forrest in
Re Civiti and Tax Agents' Board of Victoria 90 ATC 2039 at page 2042-

`The substantial amendments to the Act introduced by the Taxation Laws Amendment Act (No. 2) No. 78 of 1988, which came into force from 1 November 1988, reflect the objective that persons who prepare income tax returns or transact business in income matters for reward have appropriate knowledge of income tax law and practice. The respondent has the responsibility of assuring that objective. In the present circumstances it must be satisfied that the applicant has had substantial involvement in income tax matters, including the preparation or examination of a broad range of returns. That necessarily involves an objective assessment of the applicant's experience.'

20. The regulation requires `substantial involvement' in `the preparation or examination of a broad range of income tax returns'. It does not refer to income tax returns with a broad range. The adjective `broad' governs the noun `range' rather than `returns'. The returns prepared by the applicant may have been the result of a broad range of enquiries and research. A few specialised returns resulting from such a broad range of enquiries does not, however, constitute a broad range of returns, what is contemplated by the phrase is a range of income tax returns, spreading over the spectrum of potential taxpayers. A large group of taxpayers consists of small businesses, individual traders and partnerships. If, as the evidence showed, the applicant has not been involved in the preparation or examination of tax returns for any of these classes of taxpayers, then he cannot be said to have had a substantial involvement in the preparation or examination of a broad range of income tax returns.

21. In Civiti, Deputy President Forrest said at page 2043-

`... The word ``broad'' is not one of similar meaning to ``substantial''. In the context in which they are used, both terms are used as qualifying adjectives. ``Broad range'' does not mean the same thing as ``substantial involvement'' and vice versa. There may be one without the other. The respondent has to be satisfied the applicant has acquired both in order to have been engaged in relevant employment within the meaning of reg. 156.

Subregulation 156(2) cannot, in my opinion, be construed as applying to a particular category of returns. It is not the experience within a category of returns but rather the scope of the returns which is the test to be applied.

It is not a relevant consideration that reg. 156 does not specify the categories of returns in defining ``relevant employment''. It is explicit in the language used, that wide-ranging experience is required. A lack of experience in the areas of returns referred to, in my opinion, precludes satisfaction of the test of relevant employment.'"

12. I should refer also to the following passage from the decision of Deputy President Forrest in Civiti and I again express my agreement with it:

``The requirements of para. (a), (b) and (c) of subreg. 156(2), are cumulative. The applicant has had no involvement in the `preparation' of income tax returns, so the question for determination is whether her work experience could be said to amount to `examination' of a broad range of returns to satisfy the test in para. (a). Only if it does will it be necessary to examine para. (b) and (c).''

(page 2042)

13. Bearing these principles in mind, I will set out the facts which I have found. I have done so, in the main, on the basis of Mr Ellis's evidence, which was not contradicted except in relation to one aspect to which I shall refer

ATC 2006

later. The five year period with which I am concerned commenced in October, 1986 which was near the conclusion of Mr Ellis's period in the ``Internationals'' area of the Complex Audit Branch of the Australian Taxation Office (``the ATO''). I do not have any specific evidence as to what Mr Ellis undertook from October, 1986 to March, 1987, when he left that area, but will set out generally what he did for the whole of his time from January, 1986 when he first joined it. Mr Ellis examined the returns of approximately ten companies throughout that period and those of some of their subsidiary companies and of their directors. All of the returns involved some element of profit shifting or transfer pricing.

14. The work was undertaken either individually or as a member of a team, of which he was the senior officer, but, in either case, the work was undertaken according to a plan of things such as where the enquiries would be directed and how the statistics would be extracted. The returns related to drilling and deep sea dredging, pharmaceutical, meat wholesaling, live sheep export, construction, heavy machinery sales and leasing and real estate. During his investigations, he spoke to company directors, accountants and tax agents. At the completion of each case, Mr Ellis prepared a report on the relevant issues and recommended whether further action was required. He raised one assessment in relation to the heavy machinery interest on which he worked as a member of a team and another was raised in a different area of the ATO. Advice was given to his supervisors, colleagues and taxpayers.

15. From March 1987 to October 1988, Mr Ellis worked in the Business Audit area of the ATO and examined the affairs of various interests involved in nightclub, accounting and tax preparation, construction, property and inventions and royalties concerns. The investigations required him to consult widely as before. The nightclub investigations required him to consider the activities of a sole trader and of a company supplying services to the nightclub. The investigation into the account and tax agent required investigation into his affairs and the returns which he had prepared as there was a suggestion that he had used other people's funds as his own. The construction and property concerns involved him in the affairs of two separate companies and the inventions and royalties concerns led him to investigate a unit trust.

16. Mr Ellis recommended that amended assessments be raised in relation to each. He made that recommendation to his supervisor. Mr Ellis's evidence was that the final decision to issue the amended assessment was that of his supervisor. This contradicted Miss McCormack who is a Senior Officer, Grade C, designation Manager, in the Business Audit section of the ATO in Brisbane. She has had extensive experience as a taxation auditor since 1983. She said that the decision to issue the amended assessment was, prior to December 1987, made by the auditor.

17. Miss McCormack's evidence was that the decision was approved by the auditor's supervisor. While the auditor and supervisor would discuss the matter if there were any problems, the decision was made by the auditor subject to that approval. It was her understanding that it was fairly uncommon for the supervisor to change the recommendation and that his function was to act as a rubber stamp. She did acknowledge, however, that the supervisor would not approve the recommendation if there were a patent error of fact or of law. He or she would question the auditor but not conduct his or her own independent enquiry into the facts.

18. On the basis of both Mr Ellis's and Miss McCormack's evidence, I am satisfied that final responsibility for the decision was that of the supervisor. The process described by both Miss McCormack and Mr Ellis is common at all levels of Commonwealth administration. While the person making that recommendation may appear to be influential in the decision reached, ultimately it is not his or her decision but that of the supervisor. While it may appear that the supervisor is limited to the facts presented, an astute and experienced auditor will often ask for further enquiries to be made. Even if he or she does not see the need to do so, the final decision remains his or hers.

19. The advice Mr Ellis gave taxpayers regarding their objections was limited to advice as to the time limits in lodging them and to the need to state fully the grounds of the objection. Approximately three of the taxpayers lodged objections to the amended assessments.

20. From October 1988 to September 1989, Mr Ellis worked in the Prosecutions area, which was attached to the Business Audit Branch.

ATC 2007

During this time, he reported directly to the officer in charge of the whole compliance area. He examined 20 to 30 cases to determine whether any offences had been committed and whether the taxpayer should be prosecuted under either the Taxation Administration Act 1953 or the Crimes Act 1914. If, after examining the auditor's report, the return, other evidence and the legislation, as well as interviewing the taxpayers and their advisers, he concluded the charges should be laid, he would prepare a brief for the prosecutor.

21. Since September 1989, Mr Ellis has enjoyed a period of long service leave and bought and run a herb farm before joining Cape York Tax Specialists where he has prepared returns. The majority of the work has involved salary and wage returns, some company returns and quite a few partnerships. Between the time he joined Cape York Tax Specialists in November 1990 and August 1991, Mr Ellis had prepared over 1200 returns after conducting the necessary interviews. Although he may have, there was no evidence that he had prepared any objections in this time.

22. I have no doubt that in the 20 years Mr Ellis worked with the ATO that he gained a broad range of experience. As he has said, private employers may find such experience invaluable. The Regulations, however, have limited the nature of the experience which is considered appropriate for a person to be registered as a tax agent. It requires ``substantial involvement'' in income matters and particularly in relation to three areas. Mr Ellis has, unquestionably, had substantial involvement in income tax matters. He has not, however, at the date of the hearing, had substantial involvement in the specific areas which he is required to cover for the requisite period of two years in the past five. In those years in the ATO of which I can take account, he examined returns from a broad range of professions and industries but not a broad range of types of returns such as those from sole traders, partnerships, unit trusts and companies. Without such diversity a person cannot be said to have examined a ``broad range of income tax returns''. In his time in ``Internationals'', he examined only very limited issues. When the focus is on such a specialised area, he cannot be said to have examined a broad range. The same comment can be made of his period in Business Audit. The investigations he conducted were broader and the nature of the returns diverse but there were comparatively few returns. Although the expression ``broad range'' could be limited simply to the range of returns, I consider that, in the context of sub-regulation 156(2), it must connote broadness in the sense of the number of returns examined. This is so, because, when read in context, that sub-regulation requires ``substantial involvement'' in, among other matters, a broad range of income tax returns. In that context, the expression ``broad range'' must, in my view connote breadth of subject matter and breadth of returns from a breadth of taxpayers. As Deputy President McMahon said more elegantly:

``... what is contemplated by the phrase is a range of income tax returns, spreading over the spectrum of potential taxpayers...''

(see Re Crowley, paragraph 11 above).

What connotes that breadth is a matter for each case but I think that it must be more than the single returns in each category which Mr Ellis has examined even though that examination has been detailed and precise.

23. Even had I found that his experience in examining returns had been broad, I would not have found that he had, during this period, substantial involvement in examining objections to assessments of the provision of advice as required by paragraphs 156(2)(b) and (c). The experience in both must occur at the same time as the experience required by paragraph 156(2)(a). That required by paragraph 156(2)(b) in relation to the examination of objections to assessments must also be in respect of a broad range of income tax returns and this has not been established on the evidence.

24. Since joining Cape York Tax Specialists, Mr Ellis has been working in the preparation of a broad range of income tax returns and has been advising taxpayers in relation to them. One difficulty that I have, is that there is no evidence that he has been substantially involved at the same time in the preparation of objections in respect of such a broad range in that time. Even if this were to be overcome by additional evidence, he has not been engaged in that work for a period of two years and so cannot satisfy the requirements of sub-paragraph (A). It follows that I do not consider that Mr Ellis has been engaged in relevant employment for not less than a total of two years in the past five.

ATC 2008

Sub-paragraph (B)

25. That brings me to the nature of the employment which has been specified in each. Sub-paragraphs (A) and (B) set out the requirements where a person has been engaged in relevant employment. More particularly, sub- paragraph (A) specifies the time requirement where the person has been engaged in that relevant employment on a full-time basis. Sub- paragraph (B) deals with the case in which the person has ``otherwise been engaged in relevant employment'' i.e. otherwise than on a full-time basis. While it is in issue whether Mr Ellis was engaged in relevant employment, it is not in issue that he was engaged in full-time employment. Consequently, sub-paragraph (B) does not apply in this case.

Sub-paragraph (C)

26. Sub-paragraph (C) deals with the case in which a person has been engaged in ``such other employment'' i.e. other than relevant employment. In that case, the Board must look to the employment and the time for which the person is engaged in that employment and consider whether it is ``equivalent'' to being engaged in relevant employment as referred to in sub-paragraph (A). Mrs Wolfe argued that, when the scheme of the Act and the amendments made in 1988 to the definition of ``a fit and proper person'' are considered, the words in sub-paragraphs (B) and (C) are governed by the words ``a total of 2 years in the preceding 5 years'' in sub-paragraph (A). Alternatively, she argued that, in order for a person to have been engaged in relevant employment which is equivalent to that in sub- paragraph (A), the word ``equivalent'' requires that there be some very close nexus in time to the five year period. In a time of changing taxation laws only experience which is in more recent times would allow a person to adopt the more onerous duties of a tax agent.

27. Pincus J considered the word ``equivalent'' in sub-paragraph (C) in
Tax Agents' Board of Queensland v. Seymour 90 ATC 4262 but did so in the context of whether the work undertaken by the respondent was done while he was in employment. After recognising that he did not need to consider the point as he had already decided that the respondent was not in employment, he said at page 4266:

``... It is my opinion that the word `equivalent' in para. (C), read in context, does not connote precise equivalence to the qualification in para. (A). The question is what the Board regards as equivalent... to the work specified in subreg. (2), work which is of a different description, as long as the applicant has done the work while in `employment' in the sense I have explained.''

28. In my view, this passage is not directly relevant to the question which I must consider for Pincus J focused on ``equivalence'' in the context of ``work'' undertaken by the respondent but did not make any comment upon the time for which that work must be undertaken. Considering the words of sub- paragraph (C), it seems to me that sub- paragraph (C) specifically recognises that it may be for a different period and does so by using the expression ``for such time''. If it were otherwise it could have expressed a precise period of time. The Regulations have chosen not to but have recognised that a person may have had experience which does not satisfy the criteria of sub-paragraph (A) as expressed but which does equate with the experience required by that sub-paragraph. This accords with the meaning given to the word ``equivalent'' in the Concise Oxford Dictionary:

``1. a. equal in value, amount, or importance, (to); (of words) meaning the same; (Chem.) equal in combining value (to); having same result; corresponding. 2. n. equivalent thing, amount, word, etc.;... 3. So...''

29. I do not wish to attempt to express any definitive views on what experience is required by sub-paragraph (C) but will express a general view for the purposes of considering this case. As Pincus J said, the word ``equivalent'' does not connote precise equivalence. Consequently, sub-paragraph (C) does not require precisely the same experience for the same time as sub- paragraph (A). What it requires is the same sort of experience. What sort of experience is required by sub-paragraph (A)? It seems to me that there are two aspects to the experience it requires. The first is that there is experience with a range of income tax returns, spreading over the spectrum of potential taxpayers. The second is that the experience still has some currency. It does not have to be experience with the current taxation law for the very fact that it contemplates that a person could be registered when he has not worked in the area for the

ATC 2009

previous three years is contrary to that proposition. There may well have been substantial changes in the taxation law in that time. It seems to me that what is required by the time requirements of sub-paragraph (A) is that a person's experience is such that it is sufficiently up to date to enable him to apply it to the taxation matters with which he is dealing. That is to say, his experience is still sufficiently relevant to enable him to ascertain the current law and to apply that knowledge and other relevant skills necessary for the preparation or examination of the matters required in sub- paragraph (A). It may be that he has experience which is more distant than five years before the application but which is still relevant in this way.

30. Mr Ellis may have had experience with a broad range of taxation returns spreading over a spectrum of potential taxpayers during the period from November, 1990 until the date of the hearing. I say ``may have had'' for I do not have any evidence as to whether he has been involved in the preparation of objections and the provision of advice in that period. Apart from that experience, Mr Ellis's experience has been limited to the very detailed and specialised work in the ATO, which I have set out above. That has certainly given him a solid base of experience in the areas in which he has worked and I think that some account should be paid to it as it does give him skills which he can apply to the broad range of taxation matters required of a tax agent. What detracts from the weight I might otherwise give to it is the fact that it was experience in such specialised areas that I do not feel able to be satisfied that it equates in itself to the type of work required by sub- paragraph (A). Even when taken with his recent work since November, 1990 (were I to be satisfied that he has had experience with the preparation of objections and the provision of advice), I do not consider that Mr Ellis's total experience equates with that required by sub- paragraph (A). It may be that something less than two years in his current position may be sufficient but that is entirely a matter of conjecture and one upon which I do not embark.

31. For the reasons I have given I must affirm the decision under review.


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