Clifford v Tax Practitioners Board

BACKGROUND 12 The applicant has been a registered tax agent since 31 July 1987 and has operated her own practice as a sole practitioner since around 1988. 13 On 1 February 2021, after having received information from the Australian Taxation Office (ATO), the Board wrote to the applicant raising concerns that she may not have been complying with her obligations as a registered tax practitioner. In particular, the applicant was informed that information available to the Board indicated that annual returns in relation to self-managed superannuation funds (SMSFs) lodged under the applicant's registration number may have contained incorrect information, and that the applicant may have failed to comply with the ATO's requests for information relating to those SMSF annual returns, including requests for the provision of a copy of the approved SMSF auditor's report. The Board requested that the applicant review the annual returns of two identified SMSF clients lodged for the 2018 financial year and advise whether the SMSF auditor number listed on those returns was correct, including by providing evidence to demonstrate that the SMSF annual return was audited or explaining why the annual return was not audited prior to lodgement. 14 The Board's letter also noted that the applicant may have outstanding personal taxation obligations. The ATO records available to the Board indicated that she had an outstanding income tax debt of $193,522.07. The Board requested that the applicant immediately address any outstanding personal tax obligations. 15 On 23 February 2021, the applicant provided a response to the Board's requests. The applicant's response set out some background to her circumstances, including that she was a sole practitioner, that she had experienced serious illnesses since 2004 that had prevented her from working for some periods of time, and that she had faced a range of challenges in her personal life in connection with the management of rental properties and their associated debt and "various serious family issues". As a consequence, the applicant stated that: After 2007 I had to start letting most of my large clients go to get back to a number of clients that I could manage with only working 40 to 50 hours a week and my lodgement numbers started to decline steeply. 16 The applicant stated that she was now lodging less than 400 tax returns a year, whereas at the highest level of her practice (in around 2006) she was lodging over 1,000 tax returns annually and "working up to 100 hours a week". The applicant continued: I have been struggling every year since 2004 to complete all my Tax Return Lodgements within the Lodgement requirement time but I am hopeful to get caught up by the end of this financial year. 17 In respect of her personal tax liability, the applicant stated that she "should have this debt cleared by the end of the financial year" upon the sale of two of her rental properties. 18 In respect of the two identified SMSFs, the applicant sought to explain why she had lodged the 2018 annual returns with the ATO without an auditor's report, asserting that these were the only superannuation funds in respect of which she had not obtained auditor's reports before lodging the tax returns. The applicant stated that one of the SMSFs was "quite complex" and that she had been emailing queries back and forth to the SMSF auditor for some time, but that she had not arranged for the audit report to be completed before lodging. The applicant stated that she had "not had the time to get this paperwork to the Auditor to this date", and that it was still sitting on her "work to be completed" list. In respect of the other SMSF, the applicant stated that she had "gotten behind on yearly lodgements only due to my illnesses". The applicant said that, before she could complete and send the documentation to the auditor, she had been "receiving phone calls almost daily from [the ATO]" following up the returns. She explained that these phone calls were "quite upsetting" in their frequency and tone, leading to her having lodged the 2018 tax return without an audit report in order "to stop the harassing phone calls". The applicant said that, because she had lodged the tax returns without her auditor completing the audit report, she was then "reluctant and embarrassed" to send the 2018 audit documents to the auditor. Nevertheless, the applicant stated that she "had every intention" of completing the audit reports by 30 June 2020 but found she did not have the time due to increased work in connection with JobKeeper applications. 19 The applicant requested that she be given until 30 June 2021 to pay her outstanding income tax debt and to get the 2018 SMSF audit reports completed by her auditor. 20 On 26 August 2021, the Board sent to the applicant a further letter that was headed "Preliminary enquiries by the [Board] regarding your conduct as a registered tax practitioner" (preliminary enquiries letter). The preliminary enquiries letter noted that the Board had received a referral from the ATO in relation to her conduct alleging that, among other things, she had failed to respond to the ATO's requests for information in relation to the 2018 SMSFs, that SMSF annual returns lodged under her registration number may contain incorrect information and may not have been audited prior to lodgement, and that she currently had an income tax debt and an integrated client account debt notwithstanding her earlier indication that she intended to have such debts cleared by the end of the 2021 financial year. 21 The preliminary enquiries letter stated that, on the information currently available to the Board, there were concerns that the applicant may have breached ss 30-10(1), (2) and (7) of the Code - namely, the obligations to act honestly and with integrity, to comply with taxation laws in the conduct of personal affairs, and to ensure that tax agent service is provided competently. The Board requested the applicant to provide a written response addressing a number of specified questions, including: 1. How the [SMSF annual returns] came to be lodged with incorrect audit dates and auditor details when this information was not known at the time of lodgement. 2. Whether the trustees were aware their funds had not been audited when the [SMSF annual returns] were lodged. 3. Whether audits of all 3 [SMSF annual returns] have since been completed. 4. Why amended [SMSF annual returns] have not yet been lodged. 5. Please provide confirmation of audit and copies of audit reports for the [SMSF annual returns] listed in the below table that you have lodged since the 2016 financial year. … 6. What steps you have taken to address your outstanding personal tax liability totalling $201,106.88. 22 On 13 September 2021, the applicant sent to the Board a letter (dated 9 September 2021) in response to the preliminary enquiries letter. The applicant repeated much of the background that had been set out in her previous letter dated 23 February 2021. The applicant also repeated her assurance that she would be able to clear her personal tax debt "in the first few months of 2022" upon the sale of her rental properties, and her explanation in relation to the failure to lodge SMSF returns with an audit report. The applicant confirmed that the two identified SMSFs were "the only ones I haven't got Auditor Reports before lodging the tax returns" and sought until the end of March 2022 to complete those audit reports and to pay her outstanding income tax debt. 23 On 6 April 2022, the Board sent another letter to the applicant referring to further information that it had obtained in relation to the applicant's conduct. This relevantly included information that she had answered "no" to the question "do you have any overdue tax obligations" in her renewal of her tax agent registration lodged with the Board on 6 June 2019, in circumstances where ATO records showed that she had an income tax debt of $145,455.50 as at that date which was not under an approved payment plan. The Board also noted that it had received information from the named auditor that audits in relation to a number of SMSFs were not completed at all or on the dates that had been advised by the applicant to the ATO. The Board's letter repeated its concerns about potential breaches of ss 30-10(1), (2) and (7) of the Code and added that, taking into account the information in relation the applicant's conduct, the Board was "also concerned that [she] may have ceased to meet the tax practitioner registration requirement under section 20-5 of the [TAS Act] relating to fitness and propriety". The Board asked the applicant to provide a written response by 27 April 2022 to the matters raised in its letter. 24 On 2 May 2022, the Board sent a letter to the applicant inviting her to provide evidence regarding her health circumstances by 16 May 2022. 25 On 9 May 2022, the applicant sent an email to the Board advising that, while she was "doing [her] best", she had been "struggling" to meet the various demands made of her by the Board, the ATO, the Australian Securities and Investments Commission and her clients. 26 By letter dated 13 May 2022, the Board notified the applicant that it had commenced an investigation under Subdiv 60-E of the TAS Act relating to her alleged failure to comply with s 30-10(1), (2) and (7) of the Code, and her alleged failure to comply with the eligibility provisions of s 20-5(1)(a) of the TAS Act. 27 By letter dated 8 June 2022, the Board gave notice to the applicant of an alleged failure by her to comply with the TAS Act, and invited her to provide a written response to an attached submission in which the Board's allegations were set out. The letter enclosed a notice of the possible outcomes in terms of the decisions that the Board may make if it determined that there had been a failure to comply with the TAS Act, which included a range of potential sanctions under Subdiv 30-B or termination of registration under Subdiv 40-A. The Board stated in the letter that, based on the allegations and the applicant's circumstances, the recommended sanctions would be termination for not satisfying fitness and propriety requirements, termination for Code breaches, and a non-application period of one to five years. 28 At a meeting of the Board Conduct Committee held on 21 July 2022, the Board decided to terminate the applicant's registration as a tax agent under ss 40-5(1)(b) and 60-125(2)(b)(ii) of the TAS Act, on the basis that she had ceased to meet the tax practitioner registration requirement under s 20-5(1)(a) that she be a fit and proper person. The Committee "particularly noted the seriousness of [the applicant's] conduct, which involved an extended pattern of dishonest behaviour towards the ATO, the Board and clients who relied on [the applicant] to competently provide tax agent services". Taking into account the totality and seriousness of the applicant's behaviour, the Committee determined in accordance with s 40-25 of the TAS Act that the applicant should be prohibited from applying for registration under the TAS Act for a period of two years from the date on which the termination of her registration took effect. 29 In finding that the applicant was "not of good fame, integrity and character", and that she had not satisfied the Board that she was a fit and proper person within the meaning of s 20-15 of the TAS Act, the Committee found that the applicant: 1. has breached subsections 30-10(1), 30-10(2), 30-10(7), and 30-10(14) of the Code. 2. has failed to show acknowledgment, understanding or contrition for her conduct. 3. has demonstrated a pattern of making false and misleading statements to both the ATO and the Board. 4. has engaged in conduct that undermines the integrity of the taxation system. 5. has engaged in a pattern of behavior [sic] over several years by failing to comply with her obligations in relation to her individual tax affairs, including the failure to ensure debts are repaid or payment plans put in place with the ATO. 6. such conduct of [the applicant] undermines the integrity of the taxation system and the professional standards expected of tax practitioners and indicates that [the applicant] is not a person whom the Commissioner, clients and the public could have confidence that she would perform the functions of a registered tax practitioner competently and with integrity. 30 It is unnecessary for present purposes to set out in detail the particular findings made by the Committee in making these determinations, noting that it is the decision of the Tribunal that is the subject of the present appeal. 31 By letter dated 9 August 2022, the Board advised the applicant of its decision to terminate her registration as a tax agent, taking effect from 6 September 2022, and that she may not apply for registration for a period of two years.

Application for review 32 On 5 September 2022, the applicant applied to the Tribunal for review of the Board's decision. In her application, the applicant contended that the Board's decision was wrong because it was made at a time when she was going through an ongoing illness, was trying to work in her accounting practice as a sole trader at her busiest time of year, and was "being singled out by [the] ATO for several other matters that all required long, detailed answers that I didn't have the time or state of health to comply with on time". 33 The applicant also sought a stay of the Board's decision pending the hearing and determination by the Tribunal of the review application. An interim stay was granted on 15 September 2022 pursuant to s 41(2) of the AAT Act on the condition that the applicant did not "undertake any new clients". The interlocutory stay application was listed for hearing by the Tribunal on 27 October 2022, but was dismissed under s 42A(2) of the AAT Act when the applicant failed to appear at the interlocutory hearing. The Tribunal subsequently reinstated the stay application under s 42A(9) of the AAT Act, based on its acceptance of medical evidence explaining the applicant's failure to attend the interlocutory hearing. 34 On 29 March 2023, the Tribunal ordered that the Board's decision be stayed until the hearing and determination of the review or further order, upon the condition "that the applicant will not accept instructions from any new clients". In giving brief reasons for granting the stay, the Tribunal noted that its decision was "[m]ainly in the interests of the various clients [of the applicant] whose documents are late and cannot be lodged by the applicant unless a stay is ordered".

Tribunal hearing 35 In its statement of issues, facts and contentions (SOFIC) dated 21 April 2023, the Board identified the issues arising for determination as: (a) whether the applicant breached ss 30-10(1), 30-10(2), 30-10(7) and 30-10(14) of the Code; (b) whether the applicant ceased to meet the tax practitioner registration requirement that she is a fit and proper person as required by s 20-5(1)(a) of the TAS Act; and (c) if so, the correctness of the Board's decisions to terminate the applicant's tax agent registration pursuant to s 40-5(1)(b) of the TAS Act and determine that she may not apply for registration for a period of two years pursuant to s 40-25(1) of the TAS Act. 36 In lieu of a statement of issues, facts and contentions, the applicant indicated in an email to the Tribunal dated 12 May 2023 that she would be relying on all previous correspondence submitted to the Board and to the Tribunal, and would subsequently provide written submissions for the hearing in accordance with the Tribunal's directions. 37 The Board's written outline of submissions dated 16 June 2023 identified the issues for determination by the Tribunal in a similar fashion to those set out in its SOFIC, albeit in a slightly different order, namely: (a) whether the applicant had breached the relevant provisions of the Code and, if so, whether her registration should be terminated pursuant to s 30-30 of the TAS Act; (b) "[a]dditionally or alternatively", whether the applicant had ceased to meet the tax practitioner registration requirement that she is a fit and proper person and, if so, whether her registration should be terminated pursuant to either ss 30-30 or 40-5(1)(b) of the TAS Act; and (c) if the applicant's registration should be terminated, for what period she should be barred from re-applying under s 40-25 of the TAS Act. 38 Although the formulation of these issues referred only to termination under s 30-30 as opposed to the other sanctions available under Subdiv 30-B for a failure to comply with the Code, this is consistent with the Board's contention that the Tribunal should affirm the termination decision. In setting out the legislative framework, the Board's written submissions explicitly referred to the other sanctions for breaches of the Code under s 30-15 of the TAS Act. 39 The Board dealt separately in its written submissions with deregistration under ss 30-15 and 30-30 for breaches of the Code, and deregistration under ss 20-5 and 40-5 upon ceasing to be a fit and proper person. The Board sought orders terminating the applicant's registration as a tax agent pursuant to ss 30-30 or 40-5, and disqualifying her from applying for registration for a period of "at least" two years under s 40-25 of the TAS Act. I note that, at the hearing before the Tribunal, it was clarified that the Board did not seek a disqualification period of more than two years. 40 The Board accepted before the Tribunal that the extenuating personal circumstances relied on by the applicant could be taken into account "when exercising the discretion to terminate a tax agent's registration under s 40-5(1) of the [TAS Act]". Nevertheless, the Board submitted that "[w]hile the power to remove the applicant's name from the register is discretionary, this is not a situation where personal hardship can be allowed to prevail over community interest". 41 The applicant provided written submissions to the Tribunal on 20 June 2023, in which she submitted that she had been treated unfairly by the Board and the ATO, including in relation to the stay applications before the Tribunal, which had hampered her in performing work for her remaining clients. The applicant set out a table detailing the decline in the number of her clients and tax return lodgements since 2006, as a result of clients having retired or gone to other tax agents. The applicant responded to the Board's submissions, denying each of the alleged contraventions of the Code and submitting that she should not be deregistered. 42 The Tribunal conducted a hearing on 23 June 2023, at which the applicant appeared on her own behalf. The applicant gave evidence and was cross-examined by counsel for the Board. There were no other witnesses. 43 Counsel for the Board commenced by identifying the issues in dispute before the Tribunal by reference to its written submissions. The applicant then gave evidence in which she sought to explain the difficulties which had arisen in relation to her personal tax obligations and the SMSF audits. She addressed the table in her written submissions showing the decline in her tax return lodgements since 2006: DEPUTY PRESIDENT: … On page 4, how do I read that table, the lodgement numbers? - - - I started practising in 1988 which is the bottom figure. … And the third column over is the lodgements that I did in that year. And so by 2006 I was - I'd done, when my practice was at its largest, I lodged 1080 tax returns. And then due to ill health, other things, I started to slow down further and further. And by 30 June 2023 I'll have lodged 329. And then 2024, due to my clients retiring, businesses closing it'll probably be only 290 because I intend to retire my practice as my clients retire. I haven't taken on any new clients since 2006. (Emphasis added.) 44 The applicant was then cross-examined by counsel for the Board. In relation to her failure to disclose to the Board in her renewal of registration application in 2019 that she had an outstanding personal income tax debt, the applicant said that she had felt that she was "dealing with the ATO" and expected to reach an arrangement "when I had money" and to get a remission of general interest charges. The applicant admitted that she had lodged SMSF tax returns that had falsely stated that an audit had been undertaken, although she maintained that "nothing in the tax returns are false or incorrect". She also stated that she had lodged returns for one of the SMSFs with the false statement that they had been audited because she "just needed to get [the ATO officer] off my back, which is not a good excuse". The applicant said that she omitted to send the documents to the auditor either because she was embarrassed or because the matter was complex and she was "drained from stress of trying to get it right". Later in her cross-examination, the applicant insisted that "none of those … self-managed super funds' audits would have ever come back as anything different to what the tax returns said", having also said that she would have amended the tax returns if the auditor said there were any mistakes. Some of the audits remained outstanding at the time of the Tribunal hearing. 45 In closing submissions, counsel for the Board submitted that termination of the applicant's registration was the correct or preferable decision having regard to the circumstances. The Board's counsel accepted that mitigating personal circumstances could be taken into account by the Tribunal, but submitted that it would not be a proper exercise of discretion not to terminate the applicant's registration "having regard to the potential risks and having regard to the actual conduct here around false disclosures". 46 The applicant made closing submissions in the course of which she relevantly stated that she could not see "why there should be any termination at all from what has happened", nor how "what I have done and what I am doing is something that should result in me being terminated as a tax agent". 47 Following the hearing, the applicant sent further written submissions to the Tribunal on 28 June 2023 and 5 July 2023, to which the Board filed further written submissions in response on 10 July 2023. Among other things, these submissions concerned a decision that had been made by the ATO on or about 3 July 2023 to grant the applicant's request for remission of her outstanding personal income tax debt comprising general interest charge and late lodgement penalty. The Board submitted that this outcome did not nullify the lack of compliance by the applicant as to her tax affairs. 48 The applicant's post-hearing submissions dated 28 June 2023 also disputed that she was not a fit and proper person to be a tax agent. The applicant again referred to the reduction in her client workload, noting that she had reduced her tax return lodgements during previous periods of illness, at which time her personal assistant "had written to my Major Clients who required my services on a very regular basis to say I couldn't do their work anymore and they would have to look for an Accountant at a larger firm, as a Sole Practitioner I could not service their needs anymore". The applicant submitted to the Tribunal that she had not taken on any new clients since 2006, and that she was starting her "Retirement Phase" as her clients retired, sold their businesses or ceased to trade. The applicant concluded: If the Determination of this matter is that I am de-registered as a Tax Agent I will have to inform all of my clients that I am working on (as above paragraph), and the 140 Clients who have already booked their 2023 Tax Appointments with me that they now have to find another Tax Agent to take over their files. Most of these people have been clients of mine for over 20 years.

The Tribunal's decision 49 On 14 July 2023, the Tribunal affirmed the Board's decision to terminate the applicant's registration as a tax agent, subject to the termination taking effect one calendar month from the publication of its decision and the variation of the period for which the applicant is prohibited from reapplying for registration to 18 months commencing on the date that the termination decision takes effect: Clifford and Tax Practitioners Board [2023] AATA 2068 (Tribunal's reasons). The variation of the disqualification period from two years to 18 months was to account for the period of time during which the applicant had been deregistered without the benefit of the stay orders: see Tribunal's reasons at [33]. 50 The Tribunal's reasons for decision are reasonably concise. They do not recite or canvass in detail the background to the Board's decision as set out in paragraphs 12 to 31 above. Nevertheless, the background facts were summarised in the Board's SOFIC, and the documents lodged by the Board pursuant to s 37 of the AAT Act were admitted into evidence by the Tribunal. They do not appear to have been the subject of any real dispute or controversy. 51 By way of introduction, the Tribunal identified the reviewable decision made by the Board to terminate the applicant's registration following findings that she had breached her professional obligations and was not a fit and proper person to be registered as a tax agent. The Tribunal recorded (at [4]): The applicant disputes that she is not a fit and proper person to be registered as a tax agent. Amongst other things she says that whatever she has done incorrectly with regard to either her own or her clients' tax matters has been corrected. She does not believe she should be deregistered at all. 52 The Tribunal summarised the relevant provisions of the TAS Act, including the legislative object (s 2-5), the requirement that individuals be fit and proper persons in order to be eligible for registration as a tax agent (s 20-5), the criteria to satisfy the fit and proper person requirement including that an individual is of good fame and character (s 20-15), and the powers of the Board to terminate the registration of a tax agent if a tax agent ceases to meet one of the eligibility requirements under s 20-5 (s 40-5(1)). 53 The Tribunal also set out the relevant provisions of the Code under Pt 3 of the TAS Act, which includes requirements that tax agents act honestly and with integrity (s 30-10(1)), comply with taxation laws in the conduct of their personal affairs (s 30-10(2)), ensure that tax agent services are provided competently and respond to requests of the Board in a timely, responsible, and reasonable matter (s 30-10(7), (14)). 54 Relevant to the applicant's grounds of appeal, the Tribunal also referred to s 30-15 of the TAS Act, which provides that if the Board is satisfied, after conducting an investigation under Subdiv 60-E, that a tax agent has failed to comply with the Code, the Board may "amongst other sanctions" terminate the tax agent's registration: Tribunal's reasons at [11]. 55 The Tribunal then addressed the applicant's conduct that it found to have breached provisions of the Code. This conduct included: (a) making false declarations to the Board in her 2019 renewal of registration form by answering "no" to the question "do you have any overdue tax obligations", in circumstances whether she had a tax liability of $145,455.50 to the ATO with no payment plan in place, in relation to which the Tribunal found that both the applicant's answer and her subsequent explanation for the answer were untrue (at [14]-[17]); (b) lodging false declarations with the ATO claiming that certain SMSF clients had been audited when they had not been audited for the relevant years, exposing her SMSF clients to the risk of significant financial penalties under s 35C of the Superannuation Industry (Supervision) Act 1993 (Cth), in respect of which the applicant had given a misleading statement to the Tribunal that the matters had been corrected and that no client had been disadvantaged (at [17]-[19]); (c) misleading officers of the Board that the defaults described in (b) above were the only SMSF clients in respect of which the applicant had not received audit reports before lodging returns, when in truth the applicant had made similar false declarations in respect of several other clients for the 2014 and 2015 income years (at [20]); and (d) failing to provide substantive responses to the Board's requests for further information and attempts to contact her at various times between April and June 2022 (at [22]). 56 The Tribunal also noted that the applicant had an outstanding personal income tax debt of $77,887.31 as at 2 June 2023 with no payment plan in place, although the applicant said that this comprised general interest charge which she believed should be remitted. The Tribunal acknowledged that, subsequent to the hearing, the applicant provided evidence that the ATO had remitted the general interest charge: Tribunal's reasons at [21]. 57 The Tribunal took into account the applicant's ongoing health concerns and difficult personal circumstances, "whilst recognising the purpose of the TAS Act is protection of the public". However, the Tribunal found that the applicant's health difficulties have existed over many years, as opposed to "isolated lapses of judgment or short-term difficulties", and that that there was "nothing which comes near to excusing the applicant's multiple breaches especially in her dealings with the ATO and the [Board]": Tribunal's reasons at [23]. 58 The Tribunal found that the applicant breached the Code, and that some of her breaches involved a pattern of conduct over significant periods of time. The Tribunal found that, having heard and seen the applicant give evidence, she did not truly appreciate the significance of her conduct and "was all too ready to excuse her behaviour on factors said to be beyond her control or on the conduct of the ATO or the Board": Tribunal's reasons at [24]. 59 The Tribunal was not satisfied that the applicant was a fit and proper person to be registered as a tax agent, having considered the principles applicable to the meaning of "fit and proper person" under the TAS Act as set out in previous decisions of both this Court and the Tribunal, including Su v Tax Agents' Board of South Australia (1982) 61 FLR 1, Stasos v Tax Agents' Board [1990] FCA 379; 21 ALD 437 at 443-444 (Hill J) and Schmuel and Tax Practitioners Board [2019] AATA 2168. 60 In reaching this conclusion, the Tribunal had regard to the applicant's evidence regarding the length of time for which she had been registered and the extent of her practice, including the number of tax returns and financial statements that she had completed and lodged. Nevertheless, the Tribunal continued (at [30]): I also take into account the seriousness of the applicant's conduct including what I consider to be deliberate dishonesty. The applicant has not been open and honest in her evidence before the Tribunal. Her conduct has exposed some of her clients to possible prosecution. Even now she has not remedied some of these matters. I am not satisfied that that this conduct will not be repeated or prolonged. I do not believe the applicant has demonstrated genuine contrition or remorse. 61 Relevant to the grounds of appeal, in respect of sanctions, the Tribunal set out its conclusions as follows (at [31]-[33]): The exercise of the discretion to disqualify a person from being a tax agent is not to be used in punishment of that person. The purpose of the power to disqualify is to protect the public: Dahia v Tax Agents' Board of Victoria [1997] AATA 265 at [15]; Houvardis v Tax Agents' Board of New South Wales [1991] AATA 134 at [26]; Su v Tax Agents' Board of South Australia [1982] AATA 127. Protection of the public includes protection of the clients who may engage the tax agent's service and protection of the revenue. Protection of the public is also closely linked with public confidence in the system. The public is entitled to know and expect that persons who occupy the position of a tax agent are of high integrity. In all the circumstances I consider the appropriate sanction is that the Applicant's registration be terminated. I am also satisfied, taking all of the above into account, including giving relevant weight to the Applicant's health, her age, and other issues she has raised, that she should be prohibited from applying for registration for a total of two years. In calculation of that time, the time during which the applicant was deregistered and did not have the benefit of either of the stay orders, should be taken into account as should the fact that the current stay was subject to conditions. In my view the correct and preferable decision is that the applicant should be prohibited from applying for registration as a tax agent for eighteen months from the date upon which her termination pursuant to this decision takes effect. 62 For completeness, it may be noted that the applicant's registration was due for renewal on 1 August 2022, and she lodged an application for renewal on 27 June 2022. The effect of the relevant provisions of the TAS Act is that the applicant's registration remains effective pending the determination of the renewal application: see s 20-50(2).

STATUTORY FRAMEWORK 63 The object of the TAS Act is to "ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct", by (among other things) establishing the Board to register tax agents, introducing the Code, and providing for sanctions to discipline registered tax agents: s 2-5. 64 In order to provide tax agent services for a fee, or to engage in other conduct connected with providing such services, a person must be registered in accordance with Pt 2 of the TAS Act: ss 2-10, 50-5. 65 An individual is eligible for registration as a registered tax agent if the Board is satisfied that he or she meets prescribed requirements and is a "fit and proper person": s 20-5. In the case of partnerships and companies, each partner or each director must be a fit and proper person. 66 Section 20-15 relevantly provides that, in deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to "whether the individual is of good fame, integrity and character", including (but not limited to) whether, at any time during the previous five years, the individual was convicted of a serious taxation offence or an offence involving fraud or dishonesty, became or had the status of an undischarged bankrupt, or served a term of imprisonment. 67 If the Board grants an application for registration, the Board must determine the period for which the individual is registered, which must be for at least three years: s 20-25(4). Registration expires at the end of the period determined by the Board, unless it is terminated before that time: s 20-35(b). A registered tax agent may apply for renewal of his or her registration between 30 and 90 days before the day on which it expires, or within such other period as the Board allows: s 20-50(1). The registration is deemed to continue until the renewal application is decided or withdrawn: s 20-50(2). 68 The Code is set out in Pt 3 (Div 30) of the TAS Act. The Code relevantly applies to registered tax agents and regulates their personal and professional conduct. Section 30-10 (contained in Subdiv 30-A) relevantly provides: 30-10 The Code of Professional Conduct Honesty and integrity (1) You must act honestly and with integrity. (2) You must comply with the *taxation laws in the conduct of your personal affairs. … Competence (7) You must ensure that a tax agent service that you provide, or that is provided on your behalf, is provided competently. … Other responsibilities … (14) You must respond to requests and directions of the Board in a timely, responsible and reasonable manner. 69 Subdivision 30-B deals with the liability of a registered tax agent for administrative sanctions if the Board is satisfied, after conducting an investigation under Subdiv 60-E, that he or she has failed to comply with the Code. Section 30-15(2) provides: (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. 70 Section 30-20 confers power on the Board to give orders requiring the tax agent to take actions including the completion of a specified course of education or training, the provision of tax agent services only under the supervision of a specified registered tax agent, or the limitation of the tax agent services that may be provided by the tax agent. 71 Section 30-25 confers power on the Board to suspend the tax agent's registration for a period determined by the Board, during which the tax agent is prohibited from providing tax agent services. 72 Section 30-30 provides: 30-30 Termination The Board may terminate your registration. Note: For notice and effect of termination, see Subdivision 40-B. 73 Accordingly, in the event that a registered tax agent is found to have failed to comply with the Code, the available sanctions that may be imposed by the Board include, but are not limited to, termination of registration. The Board has power to impose a sanction other than termination, namely a written caution, an order to take specified actions, or the suspension of registration. 74 Part 4 of the TAS Act deals with termination of registration. Section 40-5(1) provides: 40-5 Termination of registration - individuals (1) If you are a *registered tax agent or BAS agent 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 (c) you breach a condition of your registration. Note: The Board may also terminate your registration for breach of the Code of Professional Conduct: see Subdivision 30B. 75 The "tax practitioner registration requirements" are defined in s 90-1 to mean "the matters about which the Board must, under Subdivision 20-A, be satisfied before the Board is obliged to grant an application for registration under this Act". This includes the eligibility requirements under s 20-5, including the requirement that an individual must be a "fit and proper person". 76 Section 30-35 of the TAS Act imposes an obligation on a registered tax agent to notify the Board in writing whenever he or she ceases to meet one of the tax practitioner registration requirements or an event affecting his or her registration as described in s 20-45 occurs. Such notice must be given within 30 days of the day on which the agent became aware, or ought to have become aware, that the event occurred, and failure to give a notice is both a breach of s 8C of the Taxation Administration Act 1953 (Cth) and a breach of the Code (s 30-10(2)). 77 If the Board terminates an individual's registration as a tax agent, the Board must notify him or her in writing of the decision and the reasons for the decision, together with any determination of a period of up to five years within which he or she may not apply for registration: ss 40-20, 40-25. The termination takes effect on the day specified in the notice, which must be at least 28 days after the date of the notice: s 40-20(2). As is made clear by the Note to s 30-30, the provisions in Subdiv 40-B dealing with the notice and effect of termination also apply where the Board terminates an individual's registration under s 30-30 (within Pt 3). 78 Part 6 of the TAS Act establishes the Board and sets out its function and powers, including a framework for the conduct of investigations by the Board. Subdivision 60-E deals with investigations by the Board. Among other things, the Board may investigate any conduct that may breach the TAS Act (which includes the Code): s 60-95(1)(b). An investigation is commenced by the Board giving the person a notice in writing. Section 60-125 deals with the outcomes of investigations. Relevantly, s 60-125(2) provides: Investigation relating to whether conduct breaches this Act (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) 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. Note: The Board may terminate an entity's registration under Subdivision 40-A without investigating conduct under section 60-95.

CONSIDERATION 79 The applicant relies on two grounds of appeal: (a) first, in deciding to affirm the decision to terminate the applicant's registration, the Tribunal erred in failing to consider alternative sanctions available under subdivision 30-B of the TAS Act (the "alternative sanctions ground"); and (b) secondly, the Tribunal erred in failing to take into account two mandatory relevant considerations, namely that the applicant was in the process of winding down her practice and was no longer accepting new clients, and that the termination of her registration would cause prejudice to her existing clients (the "relevant considerations ground"). 80 The applicant requires leave to amend her notice of appeal to include the relevant considerations ground (and the associated question of law). At the hearing, the Board opposed the grant of leave. As noted earlier in these reasons, the Board did not submit that the proposed amendment gave rise to any prejudice, but rather opposed the grant of leave on the basis that the additional ground did not have any substantive merit. The parties provided written and oral submissions addressing the relevant considerations ground. On balance, I consider that the relevant considerations ground is sufficiently arguable to warrant the grant of leave to amend. I will proceed to address the substance of this ground of appeal below.

The alternative sanctions ground 81 The applicant submits that the Tribunal was required to reach the correct or preferable decision, exercising all of the powers and discretions of the original decision-maker. In the circumstances of the present case, the applicant submits that this required the Tribunal to consider whether the decision to terminate the applicant's registration was preferable to other decisions that it had the power to make. 82 Notwithstanding that an individual must be a fit and proper person in order to obtain registration, the applicant submits that "a finding that a tax agent is not or [is] no longer a fit and proper person does not automatically lead to that person's registration being terminated". Rather, the Board has a discretion whether or not to terminate registration under s 40-5(1) of the TAS Act. Similarly, if the Board determines that a registered tax agent has failed to comply with the Code, the applicant submits that there is no obligation to impose any sanction and, if the Board decides to do so, the available sanctions include giving a written caution or ordering the tax agent to take specified actions (such as undergoing education or being subjected to supervision or limiting the tax agent services that may be provided). 83 In this regard, the applicant submits that there were reasons for exercising the discretion not to terminate her registration under ss 30-15(2)(d) and 30-30 or under s 40-5(1). In particular, the applicant submits that that termination of the registration of a registered tax agent might cause harm to his or her existing clients, and that the objects of the TAS Act include protecting those clients from "the prejudice and inconvenience of having to change tax agents". 84 Accordingly, the applicant submits that the Tribunal "proceeded on the erroneous basis that it must either affirm the Board's decision to terminate the Applicant's registration, or do nothing at all". While acknowledging that the Tribunal might have been "led into" this error by the positions that had been adopted by the parties before the Tribunal, the applicant submits that this did not relieve the Tribunal of the obligation to consider whether there was some other decision that was correct or preferable in all of the circumstances, referring to Transport Accident Commission v Bausch [1998] 4 VR 249 at 263 and Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194. 85 The applicant accepts that termination of registration is the only sanction that may be imposed under s 40-5(1) of the TAS Act when a registered tax agent ceases to meet one of the tax practitioner registration requirements, including the requirement that the agent must be a fit and proper person. However, the applicant submits that the decision whether or not to terminate registration remains discretionary, and that "where the circumstances that render a person not fit and proper also constitute a breach of the Code, the Board is able to impose a lesser sanction for breach of the Code and then take that lesser sanction into account in deciding that it is not also necessary to terminate the agent's registration for failure to be a fit and proper person". On the applicant's argument, where it is appropriate to impose a sanction other than termination under s 30-15(2), this might provide a reason to exercise the discretion not to terminate the registration of a tax agent under s 40-5(1) notwithstanding a finding that the agent is not a fit and proper person within the meaning of ss 20-5(1)(a) and 20-15. 86 The applicant contends that the Tribunal failed to consider whether it was appropriate to adopt such a course in the present case, by first considering whether or not it was appropriate and sufficient to impose a lesser sanction under s 30-15(2) of the TAS Act in respect of the applicant's breaches of the Code, before considering whether or not it was appropriate to exercise the discretion under s 40-5(1) to terminate the applicant's registration. 87 The Tribunal's failure to consider alternative sanctions is said by the applicant to be apparent from its failure expressly to refer to the provisions conferring power to impose a lesser sanction than termination, and the fact that the Tribunal "moved immediately to the conclusion that [the applicant's] registration should be terminated" after having concluded that she had breached the Code and was not a fit and proper person. The applicant submits that, when read in context, the Tribunal's reference to "the appropriate sanction" in its reasons (extracted at paragraph 61 above) was only to a choice whether or not to terminate the applicant's registration, as opposed to any consideration of the range of sanctions available under s 30-15 of the TAS Act. The applicant contrasted the manner in which the Tribunal had dealt with the determination of the length of the period during which the applicant may not apply for registration, in respect of which the Tribunal had expressly considered a number of matters and made a different decision to that made by the Board. 88 It may be noted that the applicant does not challenge the Tribunal's finding of fact that she was not a fit and proper person within the meaning of s 20-5(1)(a) and 20-15 of the TAS Act. 89 I reject the alternative sanctions ground for the following reasons. 90 In my view, Subdiv 40-A of Pt 4 of the TAS Act confers a separate power to terminate the registration of a registered tax agent that is independent of the power to impose administrative sanctions under Subdiv 30-B of Pt 3. This is consistent with the Note to s 40-5(1), which indicates that "[t]he Board may also terminate your registration for breach of the Code" (emphasis added), referring to Subdiv 30-B. The termination power conferred by s 40-5(1) covers the occurrence of certain events that affect the agent's continued registration (including conviction of a serious taxation offence or an offence involving fraud or dishonesty, or bankruptcy), ceasing to meet the tax practitioner registration requirements, or breach of a condition of the agent's registration. The termination power conferred by s 30-30, on the other hand, is one of a range of administrative sanctions that may be imposed for a failure to comply with the Code under s 30-15. 91 There may be cases in which a tax agent has failed to comply with the Code but none of the grounds for termination under s 40-5 have arisen. In such cases, the Board may impose one or more of the sanctions under s 30-15 including, if warranted by the circumstances, termination of the agent's registration. However, if there are also grounds for termination of the agent's registration under Subdiv 40-A, the Board may proceed to exercise the power conferred by s 40-5(1). The circumstances giving rise to a ground for termination under s 40-5(1) will not infrequently involve a failure by the agent to comply with the Code. For example, conviction of an offence involving fraud or dishonesty would often involve a failure by the agent to act honestly and with integrity as required by s 30-10(1). Similarly, one or more failures by the agent to comply with the Code could be sufficiently serious as to raise concerns that the agent was no longer a fit and proper person and had ceased to meet the tax practitioner registration requirements for the purposes of s 40-5(1). However, the Board is not required to consider whether any, and if so what, sanction should be imposed under Subdiv 30-B for the agent's failure to comply with the Code before addressing the exercise of power to terminate the agent's registration under Subdiv 40-A. 92 The structure of the TAS Act separates the powers conferred by Pt 3 in relation to the Code and the powers conferred by Pt 4 in relation to termination of registration. There is a degree of overlap between Pts 3 and 4, in so far as the provisions in Subdiv 40-B dealing with "Notice and effect of termination" are applicable to a termination of an agent's registration under ss 30-15 and 30-30 as a sanction for failing to comply with the Code. But this does not detract from the structural separation of the provisions for enforcement of the Code under Subdiv 30-B and the grounds for terminating registration under Subdiv 40-A. 93 Powers of the kind currently contained in Subdiv 40-A were a feature of the previous legislative regime for the regulation of tax agents in former Part VIIA of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936). The Tax Agents' Board constituted in each State had power to suspend or cancel the registration of a tax agent on grounds including that the agent was "not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters": see former s 251K(2) of the ITAA 1936. For such purposes, a person was not a fit and proper person if, among other things, the person was "not of good fame, integrity and character" or had been convicted of, or was under sentence of imprisonment for, a serious taxation offence: former s 251BC of the ITAA 1936. The Tax Agents' Board was required to cancel an agent's registration upon bankruptcy and to suspend or cancel an agent's registration upon conviction of certain taxation offences: former s 251K(1), (3C) of the ITAA 1936. 94 The TAS Act introduced a national regulatory scheme for the registration of tax practitioners, and established the Board to administer the registration system. One aspect of the new scheme was the introduction of the Code, which was intended to prescribe standards of professional conduct applicable to registered tax agents and registered BAS agents. The functions of the Board under s 60-15 expressly include the imposition of sanctions for non-compliance with the Code: s 60-15(c). However, there is nothing to suggest that the Board's functions in relation to the Code should be taken to limit its powers in relation to the termination of the registration of a tax agent who ceases to meet the tax practitioner registration requirements, including the "fit and proper person" requirement. 95 The Explanatory Memorandum for the Tax Agent Services Bill 2008 (Cth), which preceded the enactment of the TAS Act, referred to the introduction of the Code, and the range of sanctions that could be imposed by the Board for breaches of the Code: 1.21 Under the new arrangements, if a tax agent or BAS agent has breached the Code, the Board has a range of options. The Board may caution the agent, require the agent to complete a course of training, subject the agent to practising restrictions, require the agent to practise under supervision, or suspend or terminate the agent's registration. (Currently, the state Boards are only able to suspend or terminate registration.) 1.22 The Board may also apply to the Federal Court of Australia (Federal Court) for an order to pay a pecuniary penalty for certain serious misconduct, or seek an injunction to prevent an entity from engaging in, or compel an entity to undertake, certain conduct. 1.23 Such a wide range of sanctions allows the Board to tailor its response according to the severity of the misconduct. 96 Further, in explaining the context of the amendments to introduce the Code, the Explanatory Memorandum at [3.5] referred to the limited administrative sanctions that were available to the Tax Agents' Boards, namely suspension or cancellation of registration, and noted that "[t]his can leave the state Boards without an effective response to conduct that is not desirable, but does not warrant depriving a person of their livelihood". Accordingly, the amendments provided the Board with "access to a graduated range of administrative sanctions for breaches of the Code, so that the Board is able to respond to breaches appropriately": Explanatory Memorandum at [3.11], and see also [3.17], [3.71], [3.73], [6.36]. 97 Nevertheless, the references to the Board's ability to "tailor its response" to misconduct by a registered tax agent and to impose a "graduated range" of sanctions are to be understood as primarily referring to the powers conferred on the Board by Pt 3 of the TAS Act in relation to the enforcement of the Code. The separate grounds for termination under Pt 4 of the TAS Act have been maintained. As stated in the Explanatory Memorandum: Termination of registration 2.13 For clarity, the Bill separates the grounds for termination of registration into: • ceasing to meet the registration requirements, breaching registration conditions or surrendering registration (which are dealt with under Part 4); and • breaching a provision of the Code of Professional Conduct (Code) (which is dealt with under Part 3 - refer to Chapter 3 of this explanatory memorandum). 98 The different powers conferred on the Board by Pts 3 and 4 of the TAS Act respectively are also reflected in s 60-125, which deals with the outcome of investigations conducted by the Board. In particular, s 60-125(2) contemplates that the Board may either impose an administrative sanction under Subdiv 30-B (which includes termination) or terminate the tax agent's registration under Subdiv 40-A: Investigation relating to whether conduct breaches this Act (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) 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. Note: The Board may terminate an entity's registration under Subdivision 40-A without investigating conduct under section 60-95. 99 Accordingly, the introduction of the Code and the powers conferred on the Board by Subdiv 30-B to impose a range of administrative sanctions for breaches of the Code do not operate as a qualification or limit on the powers of the Board to terminate the registration of a tax agent pursuant to Subdiv 40-A in circumstances where a ground for termination is established. 100 In the present case, the Tribunal made findings that the applicant breached several provisions of the Code: Tribunal's reasons at [14]-[24]; see paragraphs 55 to 58 above. However, the Tribunal proceeded to make a finding that the applicant was not a fit and proper person to be registered as a tax agent: Tribunal's reasons at [25]. That finding enlivened the discretion to terminate the applicant's registration under s 40-5(1) of the TAS Act. The Tribunal considered a range of matters going to the exercise of that discretion, and concluded that "the appropriate sanction is that the applicant's registration be terminated": Tribunal's reasons at [32]. 101 It is clear that the power that was exercised both by the Board, and by the Tribunal on review, was under Subdiv 40-A and s 40-5(1) of the TAS Act, rather than under Subdiv 30-B. When giving notice to the applicant of the outcome of its investigation, the Board informed the applicant that it was satisfied that she had ceased to meet the tax practitioner registration requirement under s 20-5(1)(a) of the TAS Act (the "fit and proper person" requirement) and that it had decided to terminate her registration in accordance with s 60-125(2)(b)(ii) and s 40-5(1)(b) of the TAS Act. That decision was affirmed by the Tribunal on review. 102 While the exercise of the power to terminate the applicant's registration under s 40-5(1) was discretionary, the Tribunal was not required to have regard to the availability of lesser alternative sanctions under Subdiv 30-B as a mandatory relevant consideration in exercising the power to terminate under Subdiv 40-A. Nor was it prevented from considering the exercise of its powers under Subdiv 40-A until it had first addressed the imposition of sanctions for breaches of the Code under Subdiv 30-B. Having found that the applicant was not a fit and proper person to be registered as a tax agent, the Tribunal was entitled to consider the exercise of the power to terminate the applicant's registration under s 40-5(1). If the Tribunal were to have declined to exercise its discretion to terminate the applicant's registration, it would have been appropriate to consider the imposition of other sanctions under s 30-15 in respect of the applicant's failures to comply with the Code. But the Tribunal was not required to decide on a sanction under s 30-15, or otherwise to take into account the possibility of lesser alternative sanctions under Subdiv 30-B, before it considered whether or not it was appropriate to terminate the applicant's registration under s 40-5(1). 103 Further, and in any event, it is clear that the Tribunal was conscious that it had a discretion whether or not to terminate the applicant's registration under s 40-5(1), and was aware of the range of other sanctions that were available under Subdiv 30-B in respect of the applicant's failures to comply with the Code. The Tribunal's reasons must be read fairly and as a whole: see Logic Accountants & Tax Professionals Pty Ltd v Tax Practitioners Board [2022] FCA 830 at [38] (Abraham J), referring to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Here, the Tribunal expressly referred to the powers conferred by s 30-15, including the power to terminate registration under s 30-30 "amongst other sanctions": Tribunal's reasons at [11]. The Tribunal's ultimate finding was expressed in terms that termination of the applicant's registration was "the appropriate sanction" (at [32]), having regard to the seriousness of her conduct, including deliberate dishonesty and a lack of candour to the Tribunal, and the risk that such conduct may be repeated or prolonged if the applicant's registration was not terminated. To put this in negative terms, the Tribunal did not treat termination of registration as an automatic consequence of its finding that the applicant was not a fit and proper person and did not fail to appreciate the range of sanctions available in respect of breaches of the Code. It was open to the Tribunal to conclude that this was not an appropriate case in which to exercise its discretion not to terminate the registration of a person whom it had found was not a fit and proper person to be registered as a tax agent. 104 It may also be noted that the applicant did not explicitly contend before the Tribunal for the imposition of any lesser sanction under s 30-15 in respect of her failures to comply with the Code. The Board's contentions and written submissions separately identified the issues relating to the breaches of the Code and the fit and proper person requirement, and framed the question as whether the applicant's registration should be terminated pursuant to either s 30-30 or s 40-5(1)(b). The applicant submitted that her registration should not be terminated, disputing that she was not a fit and proper person to be registered, and contending that she should not be deregistered "at all". It can be accepted that the applicant's position did not constrain the powers of the Tribunal to make the correct or preferable decision in all of the circumstances, which might include the imposition of a sanction other than termination under s 30-15. Nevertheless, the Tribunal's reasons for decision may be understood in the context of the issues as presented by the parties, which focused on the question whether or not it was appropriate for the applicant's registration to be terminated. 105 Accordingly, I do not consider that the Tribunal failed to consider the availability of alternative lesser sanctions under Subdiv 30-B nor that, by failing to consider the availability of such lesser sanctions, the Tribunal erred in the exercise of its discretion to affirm the termination of the applicant's registration under s 40-5(1).

The relevant considerations ground 106 The applicant submits that the Tribunal erred by failing to take into account that she was winding down her practice, including by no longer accepting any new clients, and that as a sole practitioner her deregistration would cause prejudice to her existing clients. Each of those matters is said to have been centrally relevant to the question whether the termination of the applicant's registration was the appropriate sanction. 107 In this regard, the applicant submits that one of the objects of the TAS Act is the protection of the public and the clients of a registered tax agent. It follows, the applicant submits, that the Board and the Tribunal should have regard to the number of clients or potential clients of an agent who is facing termination of their registration, and the period of time during which the agent may provide services to those clients, as well as the prejudice that existing clients would suffer as a consequence of termination of the agent's registration. The prejudice to existing clients will be more significant if the tax agent is a sole practitioner, as opposed to a member of a partnership or an employee of a company. 108 In the present case, the applicant submits that it was relevant to the protection of the public that she did not intend to accept any new clients, and it was relevant to the protection of her existing clients that they would be subjected to the prejudice of losing their tax agent in the middle of an engagement and the additional costs involved in finding another registered tax agent to continue or complete the services. In contrast to the reasons given by the Tribunal when granting a stay of the Board's decision, the applicant submits that these matters were not adverted to by the Tribunal in its reasons for affirming the Board's decision to terminate her registration. The applicant submits that, if the Tribunal had properly taken those matters into account, it might have concluded that the correct or preferable decision was one that allowed the applicant to provide services only to her existing clients: see s 30-20(1)(c) of the TAS Act. 109 As considered above, once the Tribunal was satisfied that the applicant was not a fit and proper person and therefore did not meet one of the tax practitioner registration requirements, it was not required to consider separately the imposition of alternative sanctions under Subdiv 30-B of the TAS Act. While the power to terminate registration under s 40-5(1) is discretionary, and that discretion should not be circumscribed, the circumstances in which a person who does not meet the "fit and proper person" requirement might nevertheless be permitted to remain registered may be regarded as exceptional. It would not ordinarily be in the interests of current clients or potential future clients to retain the services of a tax agent who is not a fit and proper person to be registered. Any impact on existing clients in having to change their tax agent in such circumstances should not be overstated. 110 It may also be noted that there is no discretion to renew the registration of such a person under ss 20-25 and 20-50 of the TAS Act. If a registered tax agent is no longer eligible for registration, including because he or she is not a fit and proper person, an application for renewal must be rejected by the Board under s 20-25(1). This means that, if the applicant's renewal application lodged on 27 June 2022 were ultimately determined, it would be inevitable that the Board would reject that application unless the applicant were able to establish to the Board's satisfaction that she is a fit and proper person at the time of the decision despite the adverse findings that have been made against her. In such circumstances, any discretion to impose a lesser sanction than termination of the applicant's registration for failure to comply with the Code might arguably be regarded as somewhat academic. 111 In any event, having regard to the Tribunal's reasons as a whole, I am not satisfied that the Tribunal failed to appreciate the applicant's position or the effect of the termination of her registration on her existing clients. The relevant considerations which the Tribunal was bound to take into account are to be ascertained from the text, context and purpose of the TAS Act. The Tribunal clearly had regard to the protection of the public, in the light of its findings about the seriousness of the applicant's conduct, and the expectation of members of the public that registered tax agents are persons of high integrity: see Tribunal's reasons at [30]-[31]. The Tribunal specifically referred to "protection of the clients who may engage the tax agent's service", together with protection of the revenue: Tribunal's reasons at [31]. 112 In so far as the matters now raised by the applicant involve aspects of the facts of this particular case, those matters were not in and of themselves mandatory relevant considerations that the Tribunal was required separately to address in its reasons for decision: compare Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]. To the extent that the Tribunal was under an obligation to have regard to the applicant's claims, submissions and evidence, the Tribunal's reasons for decision sufficiently demonstrate that it discharged any such obligation. As mentioned above, the Tribunal's reasons were relatively concise and did not descend into the detail of all of the material that was before it. This might make it more difficult to characterise the reasons in the present case as "otherwise comprehensive", in so far as that might be relevant to whether or not an inference might be drawn that the Tribunal has failed to consider an issue: cf. Applicant WAEE at [47]. Nevertheless, the findings made by the Tribunal were sufficient to identify and dispose of the issues arising on the review, and I am not prepared to draw an inference that it overlooked or failed to consider any issues properly raised by the material before it. 113 It can be accepted that the material submitted by the applicant to the Board and the Tribunal referred to the fact that she was a sole practitioner, her age, the period for which she had been a tax practitioner, the reduction in the size of her practice due to her personal circumstances, and the disadvantage or inconvenience to her clients from the termination of her registration (before the stay of the Board's decision was reinstated). In the course of the hearing before the Tribunal, the applicant gave evidence in relation to the reduction in her lodgements due to her health issues and, more recently, due to her clients retiring or closing their businesses. It may be recalled that one of the conditions on which the stay of the Board's decision was granted was that the applicant could not take on any new clients. 114 The applicant gave evidence before the Tribunal that she had not taken on any new clients since 2006 and that she intended "to retire my practice" as her clients retired or sold their businesses. In response to a question posed by counsel for the Board as to whether the applicant's health concerns were limiting her ability to be able to lodge her client's returns on time or accurately, and that it might be appropriate for her "to suggest to those clients that they might be at risk, might consider going elsewhere", the applicant said: Every time I've had a major illness ... I have got my [personal assistant] to go through the clients that are too big and I didn't want to deal with anymore, to say, 'You need to find another tax agent because I won't be able to deal with your work.'... So at each time I had something like that, I would drop some clients - let those clients know they had to find another tax agent. 115 In closing submissions before the Tribunal, counsel for the Board submitted that there was little evidence about the applicant's ill health, but that the critical concern was "the real risk that may be posed to clients on an ongoing basis". While acknowledging that the power to terminate registration was discretionary, the Board's counsel submitted that it was "not a situation where … a short period of personal hardship … should be allowed to prevail over community interests, community protection and, indeed, the expectation of the community around the conduct of tax agents". Counsel for the Board continued: So it is, in the respondent's submission, in the public interest in ensuring that persons the subject of findings of the nature made by the respondent here, are really not permitted to provide these services, because the Tribunal - indeed … the public at large cannot have confidence that this sort of conduct will not be ongoing. Because even here, after three years of investigation there is still significant non-compliance and risk being imposed on clients of the applicant. 116 The applicant's closing submissions to the Tribunal did not specifically address risk to the public or prejudice to her existing clients, but rather sought to explain her past defaults and argued that she had "been addressing everything as to the best of my ability" and that she could not "see why there should be any termination at all from what has happened". 117 In all of the circumstances, I do not consider that the Tribunal failed to have regard to any of the applicant's evidence or submissions. The Tribunal adverted to the applicant's evidence as to the period for which she had been registered as a tax agent and the number of tax returns and business activity statements that she had completed and lodged over that period: Tribunal's reasons at [29]. After taking into account the seriousness of the applicant's conduct and the risk that such conduct would be repeated, the Tribunal addressed the purpose of protection of the public, including protection of the clients of the tax agent and public confidence in the system of registration: Tribunal's reasons at [31]. The Tribunal concluded that termination of the applicant's registration was the appropriate sanction and, in determining the period for which the applicant should be prohibited from applying for registration, took all of these matters into account and gave "relevant weight to the applicant's health, her age, and the other issues she has raised": Tribunal's reasons at [32] (emphasis added). 118 The applicant sought to draw a contrast between the Tribunal's reasoning in relation to the imposition of the sanction of termination and its reasoning in relation to the determination of a period under s 40-25(1) during which she may not apply for registration, suggesting that the latter revealed the alleged deficiency in the former. However, I regard such a distinction as artificial in a context where the considerations relevant to the discretion to terminate registration overlap with those relevant to the discretion to fix a period during which a tax agent should be precluded from reapplying for registration. On a fair reading of the Tribunal's reasons, there is nothing to suggest that it drew such a distinction or confined the matters which it took into account in the exercise of its discretion under either ss 40-5(1) or 40-25(1). 119 Accordingly, I do not accept the relevant considerations ground.

CONCLUSION 120 For the reasons set out above, I would grant leave to the applicant to rely on the proposed amended notice of appeal dated 23 September 2023, but dismiss the appeal with costs. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.