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The Federal Court (Rangiah J) has dismissed an appeal from a decision of the Administrative Appeals Tribunal, which had affirmed a decision of the Tax Practitioners Board refusing an application for registration as a tax agent. The Tribunal decision is Re Ayles and Tax Practitioners Board [2014] AATA 112.

The case concerned Item 202(a) of Part 2 of Schedule 2 to the Tax Agent Services Regulations 2009. That item is about “Tertiary qualifications in another discipline – specialists”, and para (a) describes, as a requirement for registration as a tax agent, that the individual has been awarded a degree or a post-graduate award from an Australian tertiary institution in a discipline other than accountancy that is relevant to the tax agent services to which the application relates.

The court noted that the appellant’s degree contained only two subjects relevant to taxation services, and it was difficult to see how his degree could be relevant to the broad range of tax agent services to which his application related, namely, the preparation of income tax returns for individuals. Further, the court found that the Tribunal was correct not to have taken into account his experience and qualifications, other than his degree, in considering whether he met Item 202(a)(i). Item 202 has three distinct criteria, namely a relevant degree or postgraduate award, completion of courses required by the Board and work experience. The appellant’s work experience could not be taken into account in deciding whether he had met the degree or postgraduate award criterion.

The court said:

“35. The aim of the criteria in Pt 2 of Sch 2 is to allow only persons who have an appropriate mix of academic qualifications, successful completion of courses required by the Board and work experience to be registered as tax agents. In that context, it seems unlikely that it was intended that, for example, someone with an arts degree who had completed two subjects relevant to services provided by a tax agent would be able to be registered as a tax agent with only 12 months full-time experience in the preceding five years, the same amount of work experience as for someone who has a degree in accountancy. It seems more likely that this applicant would be in the category of an individual who seeks to qualify on the basis of work experience and would require the equivalent of eight years full-time relevant experience in the past 10 years (in addition to the completion of courses required by the Board).

36. On the other hand, a specialist may have undertaken a degree containing some subjects directly applicable to the limited, specialised area of tax advice that the specialist wants to work in. It seems unlikely to have been intended that such a person should have to acquire the same amount of work experience as someone without any degree who intends to practice in the full range of tax agent services.

37. It is important to emphasise that whether the criteria are met is ultimately a question for the judgment of the Board based on the particular facts of the application before it.”

Ayles v Tax Practitioners Board [2014] FCA 675 (Rangiah J, 26 June 2014).

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