Tax Agent Services Act 2009

PART 6 - THE TAX PRACTITIONERS BOARD

Division 60 - The Tax Practitioners Board

Subdivision 60-E - Investigations

SECTION 60-125 Outcomes of investigations
Investigation relating to application for registration

60-125(1)
After completing an investigation in relation to an application for registration under section 20-20 , the Board must make a decision in accordance with section 20-25 .

Investigation relating to whether conduct breaches this Act

60-125(2)
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)

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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 ;

(v) decide that the entity (the contravening entity ) that engaged in the conduct, and the information in respect of the contravening entity prescribed by the regulations for the purposes of this subparagraph, be entered on the register for the period prescribed by the regulations for the purposes of this subparagraph.

Note 1:

The Board may terminate an entity ' s registration under Subdivision 40-A without investigating conduct under section 60-95 .

Note 2:

In this section, register means the register kept under section 60-135 (see subsection (10) of this section).

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60-125(2A)

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If the Board makes a decision in relation to the contravening entity under subparagraph (2)(b)(v) , then the contravening entity, and the information in respect of the contravening entity mentioned in that subparagraph, must be entered on the register for the period mentioned in that subparagraph.

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History

S 60-125(2A) inserted by No 37 of 2024, s 3 and Sch 3 item 8, effective 1 July 2024. No 37 of 2024, s 3 and Sch 3 items 11 and 12 contain the following application provisions:

11 Application provisions
(1)
The amendments of section 60-125 of the Tax Agent Services Act 2009 made by this Division apply in relation to an investigation into conduct under section 60-95 of that Act if the investigation commences on or after the commencement of this Division.

(2)
Those amendments also apply in relation to an investigation into conduct under section 60-95 of the Tax Agent Services Act 2009 if:
(a) the investigation commenced on or after 1 July 2022 but before the commencement of this Division; and
(b) immediately before the commencement of this Division, the Board had not, in relation to the investigation:

(i) made a decision under subsection 60-125(2) of the Tax Agent Services Act 2009 ; or

(ii) been taken to have made such a decision.

(3)
Regulations made for the purposes of subparagraph 60-125(2)(b)(v) of the Tax Agent Services Act 2009 :
(a) may prescribe information in respect of a contravening entity that relates to matters occurring before, on or after the commencement of this Division; and
(b) may prescribe a period that starts before, on or after the commencement of this Division.
12 Investigations that have concluded - Board may make new decision to publish findings
(1)
This item applies in relation to an investigation into conduct under section 60-95 of the Tax Agent Services Act 2009 if:
(a) the investigation commenced before the commencement of this Division; and
(b) before the commencement of this Division, the Board had made a finding that the conduct breached that Act; and
(c) on or after 1 July 2022, but before the commencement of this Division, the Board had made a decision, within the period under subsection 60-125(3) of that Act, that no further action would be taken; and
(d) the Board made that decision because, at the time the decision was made, the entity (the contravening entity ) who engaged in the conduct had ceased to be a registered tax agent or BAS agent.

(2)
The Board may, within the period of 6 months after the commencement of this Division, decide that:
(a) the contravening entity; and
(b) the information in respect of the contravening entity prescribed by the regulations for the purposes of subparagraph 60-125(2)(b)(v) of the Tax Agent Services Act 2009 ;
be entered on the register for the period prescribed by the regulations for the purposes of that subparagraph.

(3)
If the Board makes a decision (a publication decision ) under subitem (2) then, for the purposes of the Tax Agent Services Act 2009 as it applies in relation to the investigation on and after the time when the publication decision is made:
(a) the publication decision is taken to have been validly made under subparagraph 60-125(2)(b)(v) of that Act (and subsections 60-125(3) and (7) of that Act are to be disregarded); and
(b) the period prescribed by the regulations for the purposes of subparagraph 60-125(2)(b)(v) of that Act is taken to be a period of 5 years starting on the day when the Board made the decision that no further action would be taken (as mentioned in paragraph (1)(c) of this item); and
(c) except for the purposes of paragraph (b) of this subitem, the Board ' s decision that no further action would be taken is to be disregarded.
Note:

The effects of subitem (3) include that the Board must give notice of, and reasons for, the publication decision under subsection 60-125(8) of the Tax Agent Services Act 2009 , and that an application may be made to the Administrative Appeals Tribunal under section 70-10 of that Act for review of the publication decision.

Period within which a decision must be made

60-125(3)
The Board must make a decision under subsection (2) :

(a)

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within 24 months after the day on which the investigation is taken to have commenced under subsection 60-95(3) ; or

(b) if a longer period is determined by the Board under subsection (4) - within that period.

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History

S 60-125(3) amended by No 37 of 2024, s 3 and Sch 3 item 3, by substituting " 24 months " for " 6 months " in para (a), effective 1 July 2024. No 37 of 2024, s 3 and Sch 3 item 4 contain the following application provisions:

4 Application provisions
(1)
The amendment made by this Division applies in relation to an investigation into conduct under section 60-95 of the Tax Agent Services Act 2009 if the investigation commences on or after the commencement of this Division.

(2)
The amendment made by this Division also applies in relation to an investigation into conduct under section 60-95 of the Tax Agent Services Act 2009 if:
(a) the investigation commenced before the commencement of this Division; and
(b) immediately before the commencement of this Division, the Board had not, in relation to the investigation:

(i) made a decision under subsection 60-125(2) of the Tax Agent Services Act 2009 ; or

(ii) been taken to have made such a decision; and

(c) immediately before the commencement of this Division:

(i) the Board had not, in relation to the investigation, determined a period under subsection 60-125(4) of the Tax Agent Services Act 2009 ; or

(ii) the Board had, in relation to the investigation, determined a period of less than 24 months under subsection 60-125(4) of that Act.

(3)
If the amendment made by this Division applies in relation to an investigation because of subitem (2), and subparagraph (2)(c)(ii) of this item applies, then for the purposes of the Tax Agent Services Act 2009 as it applies on and after the commencement of this Division:
(a) the determination referred to in subparagraph (2)(c)(ii) of this item is to be disregarded; and
(b) the Board must not, in relation to the investigation, make any further determination under subsection 60-125(4) of the Tax Agent Services Act 2009 .

60-125(4)
If the Board is satisfied that, for reasons beyond the control of the Board, a decision under subsection (2) cannot be made within the period mentioned in paragraph (3)(a) , the Board may determine a longer period within which the Board must make a decision under subsection (2) .

60-125(5)
If the Board determines a longer period, the Board must do so not later than 2 weeks before the expiry of the period mentioned in paragraph (3)(a) .

60-125(6)
The reasons mentioned in subsection (4) include, but are not limited to, the following:

(a) undue delay that has been caused by an entity other than the Board and that has affected the conduct of the investigation to which the decision relates;

(b) the complexity of the investigation.

Decision not made

60-125(7)
If:

(a) a decision is not made within the period mentioned in paragraph (3)(a) and the Board does not determine a longer period; or

(b) the Board determines a longer period but does not make a decision within that period;

the Board is taken to have decided to take no further action in relation to the matter that was the subject of investigation.

Notification of decisions

60-125(8)
If:

(a) the Board makes a decision under subsection (2) ; or

(b) the Board investigates conduct under section 60-95 and finds that the conduct does not breach this Act;

the Board must, within 30 days of making the decision or finding:

(c)

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notify the following persons, in writing, of the decision or finding:

(i) the entity affected by the decision or finding;

(ii) the complainant (if any);

(iia) any professional association accredited by the Board under the regulations of which the entity is a member;

(iii) if the decision or finding is relevant to the administration of the * taxation laws (other than this Act) - the Commissioner;

(iv) if the decision or finding concerns a *registered tax agent in relation to providing a *tax (financial) advice service - *ASIC; and

(v) (Repealed by No 115 of 2021)

(d)

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give, in writing, the reasons for the decision to:

(i) the entity affected by the decision; and

(ia) if subparagraph (c)(iia) applies - the relevant professional association; and

(ii) if subparagraph (c)(iii) applies - the Commissioner; and

(iii) if subparagraph (c)(iv) applies - *ASIC.

(iv) (Repealed by No 115 of 2021)

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History

S 60-125(8) amended by No 115 of 2021, s 3 and Sch 1 items 123 - 126, by substituting para (c)(iv), repealing para (c)(v), substituting " *ASIC. " for " *ASIC; and " in para (d)(iii) and repealing para (d)(iv), effective 1 January 2022. For application and transitional provisions, see note under Subdiv 50-AA heading. Para (c)(iv), (c)(v) and (d)(iv) formerly read:

(iv) if the decision or finding concerns a *registered tax (financial) adviser or a *registered tax agent in relation to providing a *tax (financial) advice service - *ASIC;

(v) if the decision or finding concerns a person *covered by a *compliance scheme who provides a tax (financial) advice service - the *monitoring body for the scheme; and

(iv) if subparagraph (c)(v) applies - the monitoring body for the relevant compliance scheme.

S 60-125(8) amended by No 7 of 2017, s 3 and Sch 1 items 21 - 23, by omitting " and " after " service - *ASIC; " from para (c)(iv) and inserting para (c)(v) and (d)(iv), effective 15 March 2017.

S 60-125(8) amended by No 162 of 2015, s 3 and Sch 4 items 5 and 6, by substituting " *ASIC " for " the Australian Securities and Investments Commission " in para (c)(iv) and " ASIC " for " the Australian Securities and Investments Commission " in para (d)(iii), effective 30 November 2015.

S 60-125(8) amended by No 120 of 2013, s 3 and Sch 1 items 34 - 36, by omitting " and " after " the Commissioner; " from para (c)(iii), and inserting paras (c)(iv) and (d)(iii), effective 1 July 2014. For transitional provisions, see note under s 20-5(1) .

S 60-125(8) amended by No 120 of 2013, s 3 and Sch 2 items 20 and 21, by inserting paras (c)(iia) and (d)(ia), applicable in relation to a decision made by the Board on or after 30 June 2013, even if the investigation to which the decision relates began before that time.

60-125(9)
If the Board determines a longer period under subsection (4) , the Board must, within 30 days of making the determination:

(a) notify the entity affected by the determination, in writing, of the determination; and

(b) give, in writing, the reasons for the determination.

Definitions

60-125(10)

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In this section, register means the register kept under section 60-135 .

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