BAS AGENTS - termination of deemed registration under transitional arrangements - not a fit and proper person for registration as a BAS agent - discretion to terminate registration - discretion exercised - decision affirmed

Income Tax Assessment Act 1936 (Cth) ss 251BC, 251JA, 251L, 264

Income Tax Regulations 1936 (Cth) reg 156

Legal Profession Act 2006 (ACT) s 8

Migration Act 1958 (Cth) s 290

Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 20-15, 20-25, 20-45, 30-10, 40-5, 90-1, 90-5

Tax Agent Services Regulations 2009 (Cth) reg 5, 7, 8, pt 5 sch 2 items 201 - 207

Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Taxation Administration Act 1953 (Cth) ss 8B, 8C, 8E

Australian Broadcasting Tribunal v Bond & Others [1990] HCA 33; (1990) 170 CLR 321

Davies v Australian Securities Commission [1995] FCA 1496; (1995) 59 FCR 221

Hughes and Vale Pty Ltd and Another v State of New South Wales and Others (No. 2) [1955] HCA 28; (1955) 93 CLR 127

Re Carbery & Associates Pty Ltd and Tax Agents' Board of Queensland [2001] AATA 107

Re Cowlishaw and Tax Agents' Board of Queensland [1999] AATA 412

Re Kolya and Tax Practitioners Board [2011] AATA 73

Re Pappalardo and Tax Agents' Board of Victoria [2003] AATA 990

Re Toohey and Tax Agents' Board [2008] AATA 262

Stasos v Tax Agents Board [1990] FCA 379; (1990) 21 ALD 437

Su v Tax Agents' Board of South Australia (1982) 61 FLR 1

1. In March 2010 new arrangements for the registration and administration of tax agents and business activity statement (BAS) agents came into effect. Under these arrangements the NSW Tax Agents Board (the NSW Board) was replaced by a national body - the Tax Practitioners Board (the Board).
2. Under the new arrangements, Peter Kolya sought transitional registration as a tax agent and as a BAS agent[1]. The Board refused his application for registration as a tax agent and decided that he satisfied the criteria for transitional registration as a BAS agent. Subsequently, the Board decided to terminate his registration as a BAS agent. Mr Kolya applied for review of these decisions.
3. There are two issues: is Mr Kolya eligible for transitional registration as a tax agent and should his transitional registration as a BAS agent be terminated?
4. At this point it should be noted that the taxation and employment records of named persons in evidence are subject to confidentiality orders I gave at hearing: they are not to be published or accessed by persons other than members and officers of the Tribunal, the Board and Mr Kolya for the purposes of these proceedings.

IS MR KOLYA ELIGIBLE FOR TRANSITIONAL REGISTRATION AS A TAX AGENT?

1. The Tax Agent Services Act 2009 (the Services Act) provides a national legislative scheme to regulate the provision of tax agent services that came into effect on 1 March 2010. This scheme replaces the previous legislative arrangements for the registration and regulation of tax agents by state-based Tax Agent Boards. Transitional arrangements from the old scheme to the new scheme are contained in the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The Transitional Act also amends the Income Tax Assessment Act 1936 (the Assessment Act) by repealing Part VIIA relating to the registration of tax agents[2]. It is necessary to refer to these enactments and related legislation in order to properly understand and determine Mr Kolya's applications.
2. Under the Services Act a person must be 'a fit and proper person' in order to be eligible for registration as a tax agent[3]. Eligibility requirements for the purposes of section 20-5(1)(b) of the Services Act, concerning qualifications and relevant experience, are prescribed in the Tax Agent Services Regulations 2009 (the Regulations)[4]. Special transitional arrangements apply in respect of these requirements. Under Item 13, Schedule 2 (special rule 13) of the Transitional Act, a person who was providing a 'tax agent service within a particular area of the taxation laws' 'to a competent standard for a reasonable period' may be eligible for registration as a tax agent if certain requirements are met. Those requirements include being a fit and proper person for registration.
3. Thus, Mr Kolya will be eligible for registration as a tax agent if he is a 'fit and proper person' for that purpose and he complies with one of the prescribed requirements, or he was providing a 'tax agent service to a competent standard for a reasonable period' prior to making the application for registration[5]. If he is found to be eligible for registration, the Board (and in those shoes this Tribunal) 'must grant' the application for registration under section 20-25 of the Services Act.

Is Mr Kolya a fit and proper person for registration as a tax agent?

1. When deciding whether or not a person is a 'fit and proper person' for the purposes of section 20-5 of the Services Act, one must have regard to the criteria set out in section 20-15, including whether the person is of good fame, integrity and character. This is not an exhaustive list. I note that the criteria are synchronous with the terms of section 251BC of the Assessment Act concerning fit and proper persons to prepare income tax returns. As Hill J explained in Davies v Australian Securities Commission, the assessment of whether a person is a 'fit and proper person' will vary according to the particular office or vocation[6]. Even so, the phrase 'fit and proper person' embraces within its meaning and purpose any relevant aspect of fitness and propriety[7]: the purpose of the words is "to give the widest scope for judgement and indeed for rejection" - "Fit with respect to an office is said to involve three things, honesty, knowledge and ability"[8]. Additionally, the concept of being 'fit and proper' requires an assessment of the conduct of the person in respect of activities which have been or will be engaged in and the ends served by those activities[9].
2. These are objective tests.
3. Under the Services Act, the activities to be considered are the provision of 'tax agent services', being services relating to obligations, liabilities and entitlements of entities under tax laws and the representation of entities in dealings with the Commissioner[10]. The object of the Act is 'to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct'[11]. For this purpose, Part 3 of the Act establishes a Code of Professional Conduct[12] and sets out the obligations applying to registered tax and BAS agents, as well as a regime of sanctions in respect of non-compliance with the standards. Plainly enough, the purpose of these provisions is to ensure that tax agent services are conducted to an appropriate professional and ethical standard and to protect members of the public from exposure to services that do not meet those standards.
4. The Board says that Mr Kolya provided incorrect information in his application for transitional registration[13] - he stated that he had previously been registered as a tax agent or a nominee of a tax agent under the name of H&R Block in the ACT when this was not true. Further, the Board says that Mr Kolya misrepresented his relevant experience, claiming to have worked as a tax agent registered under the Services Act and the Assessment Act and under the supervision and control of a tax agent registered under those Acts, as well as claiming to have worked as an Australian legal practitioner[14], when these claims were not true. Additionally, the Board says that Mr Kolya failed to raise his convictions for taxation offences when these may be relevant matters which may affect his eligibility for registration[15]. The Board also asserts that Mr Kolya misrepresented his tertiary qualifications, claiming a tertiary degree in commerce or accountancy[16], when the evidence suggests that he holds a Diploma in Education[17]. The Board asserts that Mr Kolya's conduct and his competency providing tax agent services are not to the required standard and are deficient. In the Board's submission these and other aspects of Mr Kolya's case establish that he is not a fit and proper person for the purposes of the Services Act.
5. Mr Kolya rejects the Board's assertions. By his account, he has been the subject of a campaign to prevent him from obtaining registration as a tax agent over many years. He asserts that the information he provided the Board is accurate and true. He says that he has long professional experience as an expert and diligent provider of tax agent services. In his submission, as will appear, he provided tax agent services under an affiliate arrangement with H&R Block. This, he says, was a proper arrangement that was operative from 2001 to 2010, about which the Tax Office and the Tax Agent Integrity Unit were aware. He maintains that he is of good fame, integrity and character and he is a fit and proper person for registration as a tax agent.
6. In order to properly address these matters and determine whether Mr Kolya is a fit and proper person for registration as a tax agent, it is necessary to answer the following questions:
   • (a) Did Mr Kolya provide false information in his application for registration?
   • (b) Did Mr Kolya make false claims of relevant experience?
   • (c) Did Mr Kolya fail to provide or provide false information about prior convictions?
   • (d) Did Mr Kolya provide false information about his academic qualifications?
   • (e) Is Mr Kolya's conduct providing tax agent services consistent with applicable standards?
   • (f) Is Mr Kolya of good fame, integrity and character?

Did Mr Kolya provide false information in his application for registration?

1. In his application for transitional registration as a tax agent on 3 March 2010, Mr Kolya answered Yes to the question "Are you presently or have you previously been registered as a tax agent or a nominee of a tax agent?"[18]. This is objectively false - Mr Kolya has never been registered as a tax agent or as the nominee of a tax agent.
2. In his application, Mr Kolya provided an Australian Business Number (ABN) - 90230717632 - and stated that the business trading name was "HP Kolya". Whether this information concerning the ABN was correct when he lodged the application is a matter of record. The ABN appears on documents relating to "HP Kolya DBA [Doing Business As] H&R Block"[19] and "H&P Kolya Tax and Management Accountants"[20]. It appears that Mr Kolya has used a number of ABN references over time - 91870537436 in reference to the business or trading name "HP Kolya" in his application for registration as a tax agent in November 2008[21]; and 42181028058 in reference to "Taxfinassist Centre DBA [Doing Business As] H&R Block"[22] and "Taxfinassist Centre"[23]. The Taxfinassist Centre business was first registered on 1 November 2000[24]. These are but matters of note, in passing. There is no evidence that any of these businesses were registered at any time under section 251JA of the Assessment Act.
3. Mr Kolya stated in his application that the name under which he was registered was "H&R Block" in the "ACT". This is incorrect. Mr Kolya was not registered as a tax agent under that name. He was not at any time an employee of H&R Block.
4. Mr Kolya's evidence is that the tax services he provided from June 2001 to March 2010 were provided under an affiliate arrangement with H&R Block. He informed the Board (and presently maintains) that he became an affiliate of H&R Block on 6 June 2001, having undertaken "an intense online training"[25]. The objective evidence establishes Mr Kolya's affiliate program application to 'hrblock.com' was approved on 6 June 2001[26], although the present evidence does not establish that this occurred after any form of training program, intensive or otherwise. Mr Kolya's evidence is that he approached H&R Block in the USA, in Seattle, and "That's when they advised me that if I go back to Australia I will need to lodge - first approach the H&R Block office in - here in Australia, but when I called the national office at the time, the - whoever spoke to me didn't know that they were under instruction not to deal with me. That's when he said, "You could go to any nearest office." When I went to the Belconnen one they told me I had to speak to someone who never returned my calls, and that's why I ended up in Phillip, because I live in Higgins within the Belconnen district"[27]. This is not consistent with an on-line training program; by his own account, the information he provided to the Board on this point was not correct.
5. The evidence of Phillip Hunt, Managing Director of H&R Block Limited is that H&R Block Limited (Australia) is a wholly owned subsidiary of H&R Block Incorporated (USA) (the parent company) which also wholly owns HRB Innovations Incorporated (HRB Innovations)[28]. HRB Innovations holds the parent company's intellectual property rights, including trademarks that include the use of 'H&R Block' in Australia[29]. Mr Hunt stated that Mr Kolya "is not, and has never been, an employee, franchisee or associate of H&R Block Limited and/or HRB Innovations Inc. It is not therefore possible that the Applicant could have any affiliation with entities noted at paragraph 3 above [H&R Block Limited, H&R Block Incorporated and HRB Innovations] that would enable him to use the registered trademark 'H&R Block' or to load tax returns using the tax agent number '66837074'"[30]. Mr Hunt's evidence is that the affiliate program of HRB Innovations "does not confer any right to use the H&R Block trademark in connection with the provision of financial and accounting services or the preparation of tax returns"[31].
6. As can be seen, there is a stark inconsistency between Mr Kolya's account and the evidence provided by Mr Hunt. During the hearing, Mr Kolya attacked the veracity of Mr Hunt's evidence, and his credit as a witness. But his efforts lacked reliable supporting evidence and, without any sound basis, his submissions on this point are not made out. I found Mr Hunt to be a reliable witness of truth and I accept his evidence, despite Mr Kolya's contrary assertions.
7. Mr Kolya informed me that he possessed records to support his case concerning his affiliation and registration with H&R Block, contrary to Mr Hunt's evidence. I gave him time to search his records and tender all relevant materials. Subsequently, Mr Kolya handed up a number of documents which can be found in Exhibits A1, A3, A4, A5, A6 and A7.
8. Mr Kolya placed particular emphasis on emails between himself, as Taxfinassist Centre, and H&R Block in Exhibit A1. The email dated 11 August 2008 concerns an enquiry Mr Kolya made about some training using the H&R Block website. The responding email from 'hrblock.com.au' of the same date provides the requested information and asks "Would you like your name added to our mailing list?". The email dated 27 September 2008 from 'hrblock.com' appears to be a response to an enquiry by Mr Kolya about franchise opportunities with H&R Block. It is clear from the email that Mr Kolya was not a franchise owner and H&R Block's "expansion initiatives for tax season 2008" had been completed - "Your information will be kept on file for consideration [for tax season 2009]". The email dated 1 October 2008 from 'expresstaxservice.com', concerning franchise opportunities "under H&R Block and EXPRESSTAX brands", and the related document 'Request for Franchise Consideration' appear to originate from the USA. Even if this is correct, as appears, and the 27 September 2008 email was also sent from H&R Block in the USA, as Mr Kolya contends[32], this is not inconsistent with the evidence given by Mr Hunt that Australian H&R Block franchises are controlled by H&R Block Limited (Australia) in conjunction with its American parent company through HRB Innovations[33].
9. The material Mr Kolya adduced does not establish that he actually obtained, or that he could have obtained a licence to prepare tax returns as an affiliate of HRB Innovations without reference to H&R Block Limited (Australia). And none of those arrangements, even if made out, would result in his registration as a tax agent. No part of the H&R Block structure, including the parent company and the various subsidiaries, has the power to confer tax agent registration on Mr Kolya in Australia under the Services Act or, previously, under the Assessment Act outside the legislative procedures.
10. The terms of Mr Kolya's affiliate program approval provides that "Affiliate programs enable you to earn commissions on a performance basis and to associate yourself with well-established online merchants. Affiliate programs also offer you the ability to increase the value that you provide to your community by giving them access to relevant content and marketing information"[34]. The present materials do not establish that Mr Kolya's affiliate program is anything greater than these terms provide. Mr Kolya's efforts to construe this program as something more than this, as an 'affiliation' with H&R Block, using definitions from the BusinessDictionary.com website for example, are not made out. His assertion that the affiliate program provided him with registration as a tax agent or some form of lawful 'status' as a tax preparer or book-keeper under H&R Block in the ACT is not correct. I prefer and accept the evidence of Mr Hunt.
11. In his application form, Mr Kolya stated that he was registered as a tax agent with the number "66837074". This is not correct. On the evidence of Mr Hunt, the tax agent number Mr Kolya cited is registered to H&R Block in Belconnen[35]. Mr Kolya asserts that he was provided with the tax agent number by H&R Block in Kansas, USA - "When I was at the Kansas office, because the lady who called me in 2001 saying "We have accepted - we have received your application and you will need to be using this number," she actually - this is what she asked me, Member, "What is your phone number?" and I said, "My number is 0262553707." And she said, "Give me a minute," and she came back and she actually gave me a number. If you look up the phone number and the tax agent she gave me, they are very, very similar in the last several - four or five digits"[36]. Mr Kolya adduced no probative reliable evidence to corroborate or support this evidence.
12. The proposition that Mr Kolya obtained a tax agent number from someone in Kansas, over the telephone, or that the number was selected because it resembled Mr Kolya's telephone number is implausible. The proposition that the selection of a tax agent number on this highly unlikely basis would result in a number that happens to be registered to H&R Block in Belconnen[37], where Mr Kolya lives, is similarly implausible. Mr Kolya's unsupported evidence about these matters and the variations to his story over time are very far from credible or compelling. Even if one was to accept his evidence, and I do not, it is very clear that Mr Kolya was not provided with a tax agent number as the result of a tax agent registration procedure under the Assessment Act, in respect of a nominee for example.
13. Mr Kolya's assertion that "we have enjoyed Tax Preparer status because of our affiliation to HRB Innovations Inc"[38] suggests that the affiliate program conferred some form of lawful status on him to prepare tax returns. There are three things to say about this. Firstly, under the Assessment Act and the Services Act, only a registered tax agent is permitted to prepare and lodge a tax return for a fee. Secondly, as I have said, it is not established that Mr Kolya was a registered tax agent under the name H&R Block in the ACT or that he obtained a licence to prepare tax returns from HRB Innovations and H&R Block Limited. Thirdly, the affiliate program approved by HRB Innovations does not expressly confer any 'status' on Mr Kolya in respect of preparing or lodging tax returns in Australia. On Mr Hunt's evidence, for a person to prepare tax returns under H&R Block it would be necessary for the person to obtain a licence, franchise or employment with H&R Block Limited. Mr Kolya had none of these things.
14. Even if Mr Kolya perceived that the affiliate program enabled or authorised him to prepare tax returns in Australia, it did not confer tax agent registration or authorise him to operate as a tax agent. I am reasonably satisfied that Mr Kolya knew, or had good reasons to know this when he lodged his application for transitional registration. Mr Kolya told the Board "I lodged my first tax returns as a Tax Preparer/Consultant or Practitioner using the TAN 668 3704 that I was given by H R Block Incorporated over the phone to Kansas USA and not as a Tax agent in July 2001" and "The only thing is I have no other choice but to sign the tax returns as a Tax agent as there are no other options to select from on any given tax return consent page"[39]. Apart from anything else, this evidence suggests, by his own admission to the Board under caution, that from July 2001 Mr Kolya was preparing and lodging tax returns using the tax agent number he recorded in his application form, but he was not doing so as a registered tax agent. When questioned by the Board about these matters and about representing himself as a registered tax agent, on 22 September 2010 Mr Kolya replied "I applied for and was granted affiliate status by HRB Innovations in 2001 which is a world "Registered Tax Agent" including Australia. Also as a member of a Recognised Accountants body I thought I enjoyed some exception to a mandatory registration under Part VIIA and Section 251L in particular of the Tax Assessment Act 1936 and therefore the TASA"[40]. This evidence suggests that, at the time, Mr Kolya knew that he was providing tax agent services without registration as a tax agent under the Assessment Act. The proposition that 'affiliate status' with HRB Innovations conferred some form of world registration as a tax agent on Mr Kolya lacks any sound basis.
15. Mr Kolya says that he paid commissions to H&R Block in Phillip, in the ACT, and this confirms his status as a registered tax preparer. He was interviewed by the Board and said "when I got affiliation ... back in 2001 I worked with the office down here... I never dealt with the office of Belconnen. I came to ... letter that the tax agent number was using was going to the office in Belconnen. And what - the arrangement I had with them was to pay them 40 per cent of the earnings I was making, according to the schedule that I received"[41]. Mr Kolya was given a reasonable opportunity to produce evidence of such transactions, in the form of invoices, receipts or bank records for example, but he failed to do so. Mr Hunt's evidence on this point is unequivocal - H&R Block Limited has no record of an association or affiliation with Mr Kolya: "the name KOLYA has never appeared on our records"[42]. On Mr Hunt's evidence, which I accept, Mr Kolya did not pay a commission on his earnings to H&R Block from July 2001. Thus, Mr Kolya's assertion that the alleged commission arrangement confirms his status as a tax preparer with H&R Block in Phillip falls away.
16. It appears that Mr Kolya had some understanding of the tax agent registration requirements - he applied for registration as a tax agent in October 2001, only 3 months after the affiliate program was approved by HRB Innovations, and he again applied in 2008 and 2010. If he truly perceived that the affiliate program approved by HRB Innovations gave him status to provide tax agent services, including the preparation and lodgement of tax returns, it is not clear to me why he did so. When examined on this point, Mr Kolya accepted that it was necessary for him to apply for registration "to practice in your own right... to be given a number in your own right"[43]. Thus, it is quite clear that Mr Kolya knew that he was not registered as a tax agent as a result of the HRB Innovations affiliate program. It is perhaps for this reason that he included the words "H&R BLOCK AFFILIATE ONLY" in the application for registration he lodged on 21 November 2008[44]. But no such caveat appeared in his application for registration in March 2010.
17. It appears that Mr Kolya's activities were investigated by the Tax Agent Integrity Unit in 2007. On 17 November 2007 Mr Kolya informed the Unit that "my tax agents registration is most definitely NOT fraudulent", "I am affiliated with H&R Block and provide services under their registration"[45]. Precisely what Mr Kolya meant by that statement is not clear - by his own account he was providing tax agent services without the supervision and control of a registered H&R Block tax agent from 2004. Furthermore, it appears that from September 2008 Mr Kolya conducted his tax agent services in the face of threatened legal action by H&R Block Limited[46]. He says the alleged arrangement with H&R Block in Phillip came to an end in 2004 "Because they say they had instructions from the tax office not to accept or have any affiliation or association with me", but "Because I had the number, I continued to practise - to lodge the tax returns... I could prepare tax returns and charge and I would not be regarded to be an unregistered tax agent"[47]. The basis on which this rather surprising statement is made remains opaque, although it is likely that Mr Kolya's submission, that he did not require supervision at this time as he had already undertaken 2 years supervised work and substantially complied with the requirements of the Assessment Act, goes to this point. As will appear, Mr Kolya's submissions on this point are not made out. Nevertheless, even though Mr Kolya formed the opinion that he would not be regarded as an unregistered tax agent, it is clear enough on his own evidence that at all relevant times he knew that he was not a registered tax agent.
18. Mr Kolya says that the rectitude of his case concerning his provision of tax agent services under the HRB Innovations affiliate program is confirmed by the absence of prosecution by the NSW Board or the Tax Agent Integrity Unit, and by H&R Block Limited's failure to make good its threat to prosecute him for infringement of intellectual property rights[48]. But this does not advance the matter. The status of any prosecutorial action against Mr Kolya that may have been under consideration in 2007 in respect of alleged offences under section 251L of the Assessment Act is beside the point. Similarly, there may be many reasons why H&R Block Limited has not taken further action against him - those considerations are well outside the scope of the present proceedings. But the absence of prosecution action does not compel or support a conclusion that Mr Kolya is presently on firm ground.
19. Despite Mr Kolya's assertions and protestations to the contrary, it is very clear that the affiliate program approved by HRB Innovations in the USA is not consistent with him obtaining registration as a tax agent in Australia, nor does it provide him with any authority to operate as a tax agent or to prepare or lodge tax returns in Australia. At no time prior to his application for transitional registration in March 2010 was Mr Kolya a registered tax agent under the Services Act or the Assessment Act. He was not registered as a tax agent or a nominee of a tax agent under the name of H&R Block in the ACT with the tax agent number 66837074 when he signed his application for transitional registration as a tax agent on 3 March 2010. The information he provided the Board about these matters is objectively false.
20. Furthermore, I am reasonably satisfied that Mr Kolya knew, or had good reason to know, that the information he provided the Board in his 3 March 2010 application and in related (and earlier) communications, to which I have referred, was not correct. Even if he did not, as a prospective tax agent and provider of tax agent services there is an obligation on Mr Kolya to ensure that the information he provides the Board is accurate and correct. This is a serious matter that goes to the important trust that must exist between the Board and the tax agent[49]. The provision of incorrect, incomplete or misleading information to the Board by a tax agent, or a prospective tax agent, is not consistent with the standards of fitness and propriety attaching to registration as a tax agent, or with the standards set out in the Code of Professional Conduct. It is not consistent with the promotion of mutual trust between the Board, the Tax Office and registered tax agents. It also shows a lack of respect for the Board[50].
21. These matters weigh against Mr Kolya's good fame, integrity and character and his fitness for registration as a tax agent.

Did Mr Kolya make false claims of relevant experience?

1. On 3 March 2010 Mr Kolya signed a Statement of Relevant Experience that he lodged with the Board, referring to himself as "Self employed/ Administrator"[51]. In this Statement, he recorded "H&R Block" as the "Supervising tax agent making this statement", with tax agent number "66837074"[52]. At this time, however, H&R Block was not his supervising tax agent and H&R Block did not make the Statement; Mr Kolya made and signed the Statement on his own account. Mr Kolya indicated that his relevant experience was:
   • (a) work as a tax agent registered under the Services Act;
   • (b) work as a tax agent registered under the Assessment Act;
   • (c) work as a tax agent with tax agent number 66837074;
   • (d) work under the supervision and control of a tax agent registered under the Services Act;
   • (e) work under the supervision and control of a tax agent registered under the Assessment Act; and
   • (f) work as an Australian legal practitioner.
2. The objective evidence establishes that Mr Kolya did not work as a tax agent registered under the Services Act or the Assessment Act. It is also established that Mr Kolya used tax agent number 66837074, but he did not do so as a registered tax agent. I am reasonably satisfied and find that Mr Kolya's first three claims of relevant experience, at 35(a), (b) and (c), are false.

Did Mr Kolya work under the supervision and control of a tax agent registered under the Services Act?

1. Parts 2 to 5 of the Services Act came into effect on 1 March 2010. Thus, in order to establish Mr Kolya's fourth claim to relevant experience he must have worked under the supervision and control of a registered tax agent after 1 March 2010.
2. Even though Mr Kolya says that his 'affiliation' with HRB Innovations continued until March 2010, he gave evidence that he was not supervised by an H&R Block tax agent after 2004. Mr Kolya asserts that after 2004 he formed an arrangement with 'Greg' of Sleigh PEC Accountants that involved supervision of his preparation of tax returns. Mr Kolya conceded under cross-examination that this arrangement, if it existed at all, was simply one that involved Sleigh PEC lodging his personal or business tax returns. An arrangement of this kind is not consistent with work under the supervision and control of a tax agent registered under the Services Act or the Assessment Act.
3. It follows that Mr Kolya's fourth claim of relevant experience, at 35(d), is not made out, and is objectively false. I so find. Mr Kolya's assertion that he did not require supervision at this time because he had undertaken work under the supervision and control of a registered tax agent from 2001 to 2004 is beside the point.

Did Mr Kolya work under the supervision and control of a tax agent registered under the Assessment Act?

1. In order to establish Mr Kolya's fifth claim to relevant experience, there must be evidence that he worked under the supervision and control of a tax agent registered under the Assessment Act prior to 1 March 2010. As I have said, the alleged arrangement with Sleigh PEC does not satisfy this requirement.
2. It appears that Mr Kolya used registered business or trading names using the 'DBA [Doing Business As] H&R Block' suffix: "HP Kolya DBA H&R Block" and "Taxfinassist Centre DBA H&R Block"[53]. These business or trading names appear, for example, on Jennifer Zucchelli's tax returns prepared by Mr Kolya for tax years 2005-2006 to 2008-2009 inclusive[54]. There is no evidence that these tax returns were prepared under the supervision and control of H&R Block in the ACT. As can be seen, Mr Kolya issued an invoice to Ms Zucchelli in 2009 in the name "HP Kolya"[55] - also a registered business name[56]. This evidence strongly suggests that Mr Kolya was providing tax agent services in 2009, purportedly under the affiliate program with HRB Innovations, 'DBA [Doing Business As] H&R Block, for which he was charging fees in his own right. This is not consistent with him providing these services under the supervision and control of a registered tax agent. I am reasonably satisfied that he was not. By his own account Mr Kolya continued to use the H&R Block Belconnen tax agent number long after the cessation of the alleged supervisory and commission arrangement with the H&R Block Phillip office prior to 2004. His submissions concerning substantial compliance with the registration requirements under the Assessment Act do not advance the matter. I am reasonably satisfied that Mr Kolya did not work under the supervision and control of a registered tax agent during or after 2004.
3. Mr Kolya's assertions concerning supervision by H&R Block from 2001 to 2004 require careful examination. His evidence is that he was supervised by 'Greg' or 'Craig' in the Phillip office of H&R Block from 2001 to 2004[57]; he could not recall the person's name with any certainty. Mr Kolya gave evidence that the supervisory arrangement with H&R Block in Phillip continued for at least 2 years and his broader arrangement with that office continued until 2004. Under the arrangement he would meet with Craig or Greg in the Phillip office on a weekly basis and the records of returns he had prepared would be reviewed on his laptop computer[58]. Furthermore, Mr Kolya says that he entered into an arrangement to pay H&R Block in Phillip 40 percent of the fee he charged for each tax return he prepared. I have found that this assertion is not raised on any reliable evidence, however, and it is not made out.
4. Mr Hunt gave evidence that H&R Block Limited has no record of any such transactions and he comprehensively rejected Mr Kolya's assertions. He adduced records of H&R Block employees from 2001 to 2004 and stated that no person by the name of 'Craig' was employed in the Phillip office of H&R Block during this period[59]. This is consistent with the evidence of Elaine Slavik[60]. It appears that one person with that name, Craig Thomas, was employed by H&R Block in the Tuggeranong Office for a short period in 2003, but Mr Thomas states that he did not work in the Phillip office and he did not know any person with the name Peter Kolya[61]. I have examined the employee records in Exhibit R7 and I am satisfied that no person with the name 'Craig' or 'Greg' is recorded as an employee in the Phillip office of H&R Block from 2001 to 2004.
5. Mr Kolya was given a reasonable opportunity to respond to this evidence. He informed me that he did not want to cross-examine Ms Slavik or Mr Thomas, and he did not want to recall Mr Hunt. On resumption of the hearing Mr Kolya indicated that he may have further questions for Mr Hunt, but he informed me that he would not press the matter or request that Mr Hunt be recalled. Considering this, as Mr Kolya expressly did not seek to put further questions to Mr Hunt, there was no utility in recalling him. The hearing proceeded on that basis.
6. As can be seen, Mr Kolya's evidence is not consistent with or supported by the evidence of Mr Hunt, Ms Slavik and Mr Thomas, or any other evidence for that matter. I prefer Mr Hunt's detailed and well-supported evidence to the unsupported evidence of Mr Kolya.
7. It is germane to consider Mr Kolya's applications for registration over time. Mr Kolya and his wife, Hellen Atim-Okiror (AKA Helen Atim Kolya), in partnership, applied for registration as a tax agent on 17 October 2001 under the Taxfinassist Centre[62]. Mr Kolya recorded "N/A" in response to the question "If you are presently, or have previously been registered as a tax agent or as a nominee of a tax agent, provide the following details: The name under which you are/were registered... The State in which you are/were registered.... The tax agent registration number..."[63]. It should be remembered that the affiliate program with HRB Innovations, on which Mr Kolya presently relies, commenced on 6 June 2001 and, by his own account, he was provided with the tax agent number 66837074 in July of that year. If Mr Kolya is being truthful about that arrangement, it is curious that he did not see fit to inform the Board of the arrangement and the tax agent number he alleges he was provided only a few months prior to making this application. But he did not. To my mind this is a clear indication that no such arrangement had been made at that time. It appears, nonetheless, that this application was returned to Mr Kolya because it was not complete - it did not include sufficient proof of the comparable standard of Mr Kolya's foreign academic qualifications[64].
8. Mr Kolya's application for registration in 2008[65] also did not proceed. It appears that Mr Kolya withdrew this application "in view of the fact that I need to complete a further semester of Australian Taxation Law and also undergo supervised work for at least 12 months, my application at this time would not meet the requirements"[66]. There is some disputation about the circumstances in which this withdrawal occurred. Mr Kolya gave sworn evidence that the stated reason he gave for withdrawing his application was not true. He asserts that he only gave this reason because he was advised to do so and not to refer to the 'real reason' by the Secretary of the NSW Board, Noel Gwynne. Mr Gwynne was not called to give evidence. Mr Kolya says that the real reason was there may have been a conflict of interest as the application was made in partnership with his wife, who is an employee of the Tax Office. Furthermore, Mr Kolya says that Mr Gwynne told him not to proceed with this application because new arrangements that would accommodate him were due to commence shortly thereafter. These allegations are not supported by reliable evidence and they are contrary to the relevant contemporaneous documents. The reasons Mr Kolya's application did not proceed were set out in Mr Gywnne's letter to Mr Kolya on 11 December 2008[67]. On this evidence, which I accept, I am reasonably satisfied that Mr Kolya's contemporaneous written reasons for withdrawing his application were true, albeit that he omitted reference to other reasons given by the NSW Board.
9. Thus, Mr Kolya's evidence that he was not truthful in his communication with the NSW Board is, itself, not truthful. It appears to me that Mr Kolya's evidence on this point was intended to support his repeated assertions that he had completed the study and supervised work experience necessary for registration, and that he was the subject of a concerned campaign to prevent him from obtaining registration as a tax agent. He has repeatedly made allegations about the "tricks and antics the Board has used against me"[68] in order to bolster his case. His allegations and assertions about these matters lack substance and are not made out on the present evidence. Furthermore, they indicate a degree of disrespect for the Board.
10. Weighing the relevant evidence, I am reasonably satisfied that Mr Kolya's alleged arrangement with H&R Block in Phillip is not made out and it did not occur. I am reasonably satisfied that Mr Kolya's assertions concerning alleged financial and supervisory arrangements with H&R Block in Canberra from 2001 to 2004 are not made out. There is no reliable evidence that he worked under the supervision and control of an H&R Block tax agent registered under the Assessment Act in this period. I so find.
11. I note the Statement of Relevant Employment signed by Michael Malomo Taylor, a registered tax agent, on 17 October 2001[69], which indicates that Mr Kolya was employed as a part-time taxation consultant by Joseph Domenici & Associates from 1993. Mr Taylor was not called to give evidence. It is curious that Mr Kolya made no reference to this alleged employment in his communication to the Board on 20 September 2010, or in his applications for registration in 2010 and 2008, when setting out his employment history[70]. If one accepts that Mr Kolya worked under the supervision and control of Mr Taylor from 1993 to October 2001 (and there are serious doubts about the veracity of this untested evidence), his claim to have worked under the supervision of a registered tax agent under the Assessment Act may be true. Nonetheless, the only evidence that Mr Kolya worked under the control and supervision of a registered tax agent after 17 October 2001 is his own, and his account not only lacks corroboration, it is not consistent with the detailed evidence of Mr Hunt and the objective records of H&R Block in Canberra, which I have carefully examined and prefer.
12. Thus, in sum on this point, it is possible that Mr Kolya's fifth claim to relevant experience, at 35(e), working under the supervision and control of a tax agent registered under the Assessment Act, may be correct in part if one accepts the evidence concerning Mr Taylor. But I am reasonably satisfied that the information Mr Kolya provided to the Board and to this Tribunal about working under the supervision and control of a registered tax agent from October 2001 is not true and correct.

Did Mr Kolya work as an Australian legal practitioner?

1. In order to establish Mr Kolya's sixth claim evidence that he worked as an Australian legal practitioner is required.
2. Mr Kolya asserted that he has legal training[71] and is a legal practitioner[72]. The transcript records the following exchange[73]:

Mr Webb: Well is that your answer, that -? Yes. I'm a legal practitioner and the - if I read the definition of legal practitioner it's - it has several - several migration agents, solicitors, barristers, and other legal practitioners.

Mr Sharwood: Where? What piece of legislation have you read that in? 2006 of - of the ACT-

Legal Practitioners Act? - Yes.

Do you have a practising certificate? - I have a PPC, yes.

A what? PPC, Public Practice - Legal Practice.

Issued by who? Who issued that certificate to you? I get a practice certificate from - from MARA.

The Migration Agency Registration Authority? Yes. Yes.

You don't have a practising certificate as a legal practitioner, though? I don't know whether you were trying to mean as a solicitor or a barrister. Is that what you are trying to mean?

Well, the question asked whether you had done work as an Australian legal practitioner? Yes. Yes.

And you say you have? And I do.

You say you have because you're a migration agent? Yes.

1. As can be seen, it appears that Mr Kolya's claim to be an Australian legal practitioner proceeds on the basis of his registration as a migration agent. It can be accepted that from 20 June 2009 to 19 June 2010 Mr Kolya was registered as a migration agent[74], although it is not clear when he was first registered as a migration agent by the Migration Agents Registration Authority. Mr Kolya says that it was on the basis of his registration as a migration agent that he joined the Law Institute of Victoria[75]. It may also be accepted that Mr Kolya has undertaken some study relating to tax law at the Australian National University and in relation to business law at the National Teachers College in Kyambogo, Uganda.
2. Registration as a migration agent and membership of the Law Institute of Victora, however, does not permit Mr Kolya to describe himself as an Australian legal practitioner. Mr Kolya is not an Australian legal practitioner under the terms of the Legal Profession Act 2006 (ACT) (the ACT Act). Section 8 of that Act provides that the term 'Australian legal practitioner' means 'an Australian lawyer who holds a local practising certificate or interstate practising certificate'. A local or interstate practising certificate is one issued under the ACT Act or an equivalent State Act. There is no evidence that Mr Kolya holds a practising certificate of this kind and he is not an Australian lawyer. Holding out his certificate of registration as a migration agent as the practising certificate of an Australian legal practitioner does not advance the matter - it is not.
3. Mr Kolya's claim to have worked as an Australian legal practitioner in the Statement of Relevant Experience he submitted to the Board is incorrect. Mr Kolya describes himself as having some legal training, and he made reference to the ACT Act. It appears to me, therefore, that Mr Kolya is in a position to know that the information he provided the Board was not correct and would be misleading.
4. Thus, in conclusion, it can be seen that Mr Kolya provided information to the Board about his relevant experience that is objectively incorrect. Further, to my mind, when he lodged his Statement of relevant experience with the Board on 3 March 2010 Mr Kolya knew, or had good reason to know, that the information he was providing was false and likely to be misleading.
5. This weighs against Mr Kolya's good fame, integrity and character and his fitness for registration as a tax agent.

Did Mr Kolya provide false information about prior convictions?

1. In Mr Kolya's November 2008 application for registration he answered No to question 12 concerning prior convictions[76]. As will appear, this answer is not correct.
2. The evidence reveals that Mr Kolya was convicted of two taxation offences, namely failure to provide the Commissioner of Taxation with information as required, being an offence under section 264(1)(a) of the Assessment Act, and failure to attend before the Commissioner as required, being an offence under section 264(1)(b) of that Act[77]. These offences are within the terms of section 8C of the Taxation Administration Act 1953 (the Administration Act). Under section 8B(2) of that Act, even though both convictions were made by the same Court in the same sitting on the same day, the second conviction means that Mr Kolya is to be treated as having been previously convicted in respect of the first conviction. The penalty under section 8E of the Administration Act is 20 penalty units or less for the first conviction and up to 40 penalty units for a second offence. Thus, the second offence for which Mr Kolya was convicted was punishable by a penalty up to and including but not exceeding 40 penalty units. For this reason neither of Mr Kolya's two offences constitutes a 'serious taxation offence' for the purposes of section 20-45 of the Services Act. Even so, it is plainly established that Mr Kolya was convicted of two taxation offences and he provided the NSW Board with incorrect information about this in his 2008 application for registration. Furthermore, he failed or omitted to inform the Board about these convictions in his March 2010 application for registration.
3. With regard to Mr Kolya's failure to inform the Board of his convictions, I do not accept his protestations that he did not understand that he had been convicted of an offence. He appeared before Magistrate Lalor and entered a 'not guilty' plea in respect of the two charges against him. He was found guilty and convicted on each charge. He was fined $550 on each count. On 14 September 2010 Mr Kolya described these events to the Board - "The judge/magistrate however issued orders for me to attend a fresh interview with the ATO to which I complied. He also fined $1,300 for each charge and I readily complied and paid $2,600. That is integrity. Even when the proceedings were botched as has been everything else I did not hate ATO and its Officers"[78]. On 22 September 2010 in submissions to the Board, Mr Kolya was critical of Magistrate Lalor, "At the court hearings, I am not sure whether I dealt with a sane Magistrate", and alleged a conspiracy against him by officers of the Tax Office[79]. This is a recurring theme[80] to which he returned in his oral evidence; but the theme lacks substance in the form of reliable probative evidence. On 28 September 2010 Mr Kolya provided an explanation of "mitigating circumstances" relating to "my convictions"[81]. Mr Kolya's sworn evidence before me was that the convictions "were a sham"[82], "I think at that time it was not a conviction, in fact. It was - there were two orders he made... they were small fines, 550"[83]. When cross-examined on this point[84], Mr Kolya denied that he had been convicted - "if I had taken this to be a - pay this following a conviction, I would have appealed against it, because it was totally incorrect"[85]. He described the Certificates of Conviction at T62 as a "concoction" - "These are very fake documents"[86] - manufactured by the Australian Government Solicitor.
4. Mr Kolya professes to have some legal training[87] and, on information he provided to the Commonwealth Director of Public Prosecutions, this was not the first time that Mr Kolya had been before the ACT Magistrates Court[88]. There is no evidence of any other conviction being entered, however.
5. To my mind, Mr Kolya's sworn evidence before me that he was not convicted, or not aware that he had been convicted, of any offence is simply prevarication. His assertion that he had not been provided with Certificates of Conviction stands beside the point - the evidence establishes that he appeared in the ACT Magistrates Court and he was found guilty and convicted on the day his case was decided. I am reasonably satisfied that Mr Kolya did not include information about his prior convictions for tax offences in his application for transitional registration as a tax agent, even though he knew that he had been convicted and those convictions were relevant matters that may affect his eligibility for registration. Furthermore, I am satisfied that in his November 2008 application for registration Mr Kolya knew that when he answered No to the question 'Have you been convicted or been placed under sentence for any offence in Australia or any other country in the last 10 years?', his answer was incorrect and not truthful.
6. This weighs against Mr Kolya's good fame, integrity and character and his fitness for registration as a tax agent. Furthermore, aspects of Mr Kolya's evidence and submissions on this point demonstrate apparent disrespect for the Courts and the Board that is not consistent with the conduct that is expected of a tax agent.

Did Mr Kolya provide false information about his academic qualifications?

1. With regard to the issue of Mr Kolya's academic qualifications, he informed the Board[89] and he gave sworn evidence before me that he is a qualified accountant[90]. His evidence was that he has a Degree in Commerce from Makerere University in Uganda and he was admitted as a member of the Association of Tax and Management Accountants on 30 October 2008[91].
2. In his application for registration as a tax agent in 2008 he claimed that he had successfully completed a "B. Comm, accounting" course at Makerere University, Kampala, Uganda in 1984[92].
3. In his application for registration in 2001, however, Mr Kolya made no reference to a degree in commerce or qualification as an accountant, but recorded his qualifications as "Business education" at the National Teachers College, Kyambogo, Uganda, completed in 1984, and an "Outreach Access" course completed in 1994 at the Southern Sydney Institute of TAFE[93]. Attached to this application is a brief statement by J. I. Akabwai, Registrar, National Teachers College, Kyambogo, confirming that Mr Kolya (then known as Moses Peter Wandeba) successfully completed a "three year course in Business Education, leading to the award of the Makerere University Diploma in Education. His major subjects were Commerce and Accounts"[94]. This evidence that Mr Kolya holds a Diploma in Education was not challenged and may be accepted.
4. Mr Kolya was given a reasonable opportunity to marshal evidence and to present this aspect of his case. At the resumed hearing in October 2011, he gave evidence that he commenced a Bachelor of Commerce Degree at Makerere University in 1986, which he completed in 1988. His evidence on this point is somewhat confused, however, as he also gave evidence that he left Uganda in 1986 and was pursued by Ugandan Government agents in Kenya, having to change his address frequently as a result. His evidence was that he was harassed and persecuted by the new Government in Uganda in 1986, having previously been involved in political affairs. Mr Kolya asserted that, in any event, he contacted the Registrar of the Makerere University to obtain the transcript of his Degree, but the Registrar refused on the instructions of the Ugandan Government.
5. When cross-examined on these points, Mr Kolya asserted that he confused the dates in his 2008 application - the Bachelor of Commerce Degree was awarded in 1988, not 1984. In his submission, this was an honest mistake. Nevertheless, he has provided no reasonable explanation why he omitted any reference to his alleged Bachelor Degree in Commerce in his earlier application for registration in 2001. To my mind, the information Mr Kolya provided in his 2001 application is more likely to be correct. If, in truth, Mr Kolya obtained a Commerce Degree, as he now claims, one would expect that he would have made reference to it in his 2001 application. But he did not. If the absence of supporting evidence from Makerere University did not prevent him from referring to the alleged Degree in 2008, I fail to see why this would prevent him from making the same reference in 2001. His submissions on this point lack cogency and force. Furthermore, Mr Kolya's evidence concerning his departure from Uganda and his subsequent movements do not accord with his evidence that he was studying in Uganda, or by correspondence from Kenya, from 1986 to 1988. When asked about this apparent inconsistency, Mr Kolya stated that he may have left Uganda in 1988 and he may have been mistaken in his earlier evidence. Mr Kolya's evidence concerning the reason for him not obtaining a transcript of his alleged Degree from the Makerere University to support his application for registration lacks corroboration. In 2001 and 2008 the NSW Board informed Mr Kolya of the application requirements in relation to his academic qualifications. Mr Kolya has had 10 years in which to obtain materials to support his assertions about his qualifications, but he has not done so.
6. The registration requirements of the Association of Tax and Management Accountants are not in evidence. It is not established, therefore, that Mr Kolya's membership of that association was predicated on an accountancy qualification, as he presently contends. If Mr Kolya provided the Association with evidence of the qualification he claims, it would be reasonable to expect him to provide that same evidence to the Board, or in those shoes this Tribunal. As he has not done so, it may be inferred that his membership of the Association was not based on probative evidence of an accountancy qualification, or a Commerce Degree.
7. Without corroboration, I am not persuaded to accept that Mr Kolya obtained a Bachelor Degree in Commerce or Accounting from Makerere University - the present evidence does not permit such a finding on the balance of probabilities. As I have said, Mr Kolya was provided with a reasonable opportunity to adduce relevant evidence, but he did not do so. His explanation for not doing so is not plausible and it is not, itself, supported by evidence. The information he provided to the NSW Board in November 2008 was not supported by reliable evidence and to my mind on the present evidence it was, in all likelihood, false. I so find.
8. I am reasonably satisfied that the information Mr Kolya included in his March 2010 application for transitional registration as a tax agent and related documents is not correct and Mr Kolya has not been truthful about his qualifications and experience in his subsequent communications with the Board, and in his evidence before this Tribunal. His evidence about these matters was inconsistent, without corroboration and, to my mind, unconvincing and disingenuous.
9. This weighs against Mr Kolya's good fame, integrity and character and his fitness for registration as a tax agent. Once again, the provision of incorrect and misleading information to the Board and its predecessor in NSW is not consistent with the mutual trust and respect that must exist between the Board, the Tax Office and a registered tax agent.

Is Mr Kolya's conduct providing tax agent services consistent with applicable standards?

1. As I have said, the object of the Act is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. For this purpose, eligibility requirements for registration are prescribed in the regulations, subject to special rule 13 under the Transitional Act, and Part 3 of the Services Act establishes a Code of Professional Conduct[95], setting out the standards of conduct and the obligations of registered tax and BAS agents. Among other requirements, the Code of Conduct requires a registered tax or BAS agent to act with honesty and integrity, personally complying with tax laws and responding to requests and directions from the Board in a timely, responsible and reasonable manner. Prior to the commencement of the new legislative scheme, the applicable standards attaching to the assessment of whether a person is 'fit and proper to prepare income tax returns' were set out in s 251BC of the Assessment Act and Regulation 156 of the Income Tax Regulations 1936. As can be seen, the Regulation sets out criteria covering, in broad terms:

(iv) successful completion of a course in Australian income tax law.

1. I have heard and carefully considered Mr Kolya's evidence and the submissions he has made, especially in respect of his qualifications, experience, knowledge, competency and conduct. He has provided information to the Board and to the NSW Board (and to the Tribunal) that is objectively false. I am reasonably satisfied that Mr Kolya knew, or he had good reasons to know, that this was so when the information was provided.
2. For reasons already given, I do not accept Mr Kolya's submission that he satisfies or has substantially complied with the prescribed registration requirements in respect of qualifications and experience. As I have said, there are serious doubts about whether Mr Kolya has worked under the supervision and control of a registered tax agent for two years or more. This did not occur under any arrangement with H&R Block. There are also serious questions concerning his competency and his probity.
3. And I do not accept, for the purposes of special rule 13 under the Transitional Act, that Mr Kolya has provided tax agent services within particular areas of the tax law to a high level of competency for a number of years prior to the new legislative scheme coming into effect. Mr Kolya's assertion that his continuing membership of professional associations, including the Association of Tax and Management Accountants, the Law Institute of Victoria and the Migration Institute of Australia, supports his competency in providing tax agent services does not assist. Even if these organisations are professional associations that apply professional practice standards, requiring continuing education and training for example, the present evidence does not establish whether the associations are registered under the Services Act and the Regulations[96]. Nor does it establish the extent to which any particular organisation standards are relevant to the provision of tax agent services, having regard to the tax laws, generally, and to the Regulations and the Code of Conduct under the Services Act. Without more, mere membership of these organisations does not establish Mr Kolya's competency, or his integrity, for present purposes.
4. Mr Kolya says that he has been providing services to an increasing number of clients with diligence and probity for more than 10 years. But the evidence clearly establishes that Mr Kolya misled clients about his tax agent registration. That is not consistent with his claims in respect of probity. Witnesses Mr Kolya called to give supporting evidence were surprised to learn that he is not a registered tax agent. Scott Applebee gave evidence that when he completed a compliment form in support of Mr Kolya[97] he was under the impression that Mr Kolya was properly registered as a tax agent and that there was a certificate in his office to that effect. Discovering that Mr Kolya is not a registered tax agent was a matter of concern for Mr Applebee and he stated that he would not use Mr Kolya's services if he is not registered[98]. Arlene Onio also completed a compliment form in support of Mr Kolya[99]. Her evidence was that Mr Kolya had informed her that he was a registered tax agent and "as I have entered into your office I do notice that there is a certification stated that you are"[100]. She, too, was concerned to discover that Mr Kolya is not a registered tax agent and she stated that she would not use his services unless he is properly registered[101]. Ljubomir Vranko completed two compliment forms[102] in support of Mr Kolya and gave evidence that he "is a diligent man"[103]. Like Mr Applebee and Ms Onio, Mr Vranko was concerned to discover that Mr Kolya has never been registered as a tax agent. Mr Vranko gave evidence about documents on a wall in Mr Kolya's office that are "well displayed at eye level so that everybody entering that room should be actually seeing it" and that he assumed that Mr Kolya "is abiding by the set up rules"[104]. On this evidence, it is clear that Mr Kolya misled Mr Applebee, Ms Onio and Mr Vranko about his tax agent registration. I so find. Conduct of this kind is not consistent with the standards that are expected of a tax agent.
5. Furthermore, Mr Kolya's evidence concerning tax agent services and the difference between a tax agent and a BAS agent under the Services Act[105] clearly exposes his lack of knowledge about the tax laws and related requirements. This aspect of his evidence is most concerning in the light of the caution he was issued by the Board, about offences under section 251L of the Assessment Act. He informed me that he was aware of the caution and the potential penalties. Nevertheless, he has conducted his case before the Board and in this Tribunal on the basis that he does not require registration as a tax agent. He says that his affiliate arrangement with HRB Innovations from 2001 to 2010 enabled him to provide tax agent services during that period, and subsequently his transitional registration as a BAS agent has authorised him to continue to provide these services in his own right. On any reasonable construction of the Services Act and the Transitional Act, and a fair assessment of the HRB Innovations affiliate program, this is not correct.
6. Mr Kolya maintains that he upholds, interprets and applies the taxation laws diligently when preparing taxation returns for clients: he only includes deduction claims in client returns that are properly supported and justified as instructed; he does not attempt to inflate or concoct deduction claims; nor does he promote himself, overtly or covertly, as someone who is able to obtain higher tax refunds than other tax agent service providers; he is extremely thorough in his work and he has specialist tax knowledge, having been employed by the Tax Office and being registered as a migration agent for example, that enables him to achieve results that others may not. These assertions are not supported by reliable evidence. The present evidence, concerning Ms Zucchelli for example, is that he inflated deduction claims and made deduction claims without a proper basis. His denials are far from compelling. The present evidence concerning Mr Kolya's assertion that he only proceeds on instructions from his clients and that he provides dual computer screens in his office does not compel a different conclusion.
7. Ms Zucchelli struck me as a straight-forward and truthful witness. She gave a cogent account of her relevant employment circumstances, for example in respect of uniforms, travel arrangements and her health, not least her very poor eyesight. She also recounted the circumstances in which she obtained tax advice from Mr Kolya. Mr Kolya's efforts to attack her reliability and her credit were not persuasive, and I have no difficulty accepting her evidence. It is quite clear that the deductions included in the tax returns Mr Kolya prepared on her behalf are not consistent with Ms Zucchelli's evidence concerning her employment circumstances. I accept Ms Zucchelli's evidence concerning the manner in which her tax returns were prepared by Mr Kolya[106].
8. It is necessary to address Mr Kolya's submissions and the evidence concerning Ms Zucchelli's tax return for 2004-2005[107], parts of which are in Exhibit A11[108]. Mr Kolya made a number of assertions about this return, which does not form part of Ms Zucchelli's statement in Exhibit R6. Mr Kolya held out this document as one that had been prepared in consultation with Ms Zucchelli, and on her instructions, in 2009. Ms Zucchelli denied any knowledge of it and gave evidence that Mr Kolya did not prepare her tax return for 2004-2005; it was prepared by H&R Block in Belconnen. Mr Kolya relies on a letter Ms Zucchelli appears to have signed seeking amendment of her tax assessment for that year, but Ms Zucchelli denied any knowledge of the letter, stating that she signed a lot of documents for Mr Kolya without reading them. I note that the 2004-2005 tax return is not signed by Ms Zucchelli, but it is signed by Mr Kolya - his explanation is that the copy Ms Zucchelli signed was lodged with the Tax Office. I note that Mr Kolya's signature appears in the tax agent's declaration on the last page with the tax agent's number: 97261004. It appears that this number is Mr Kolya's BAS agent number that was issued by the Board on 6 October 2010[109]. Setting to one side questions about the authenticity of the document and whether or not it was lodged, which I am not able to resolve on the present evidence, the thrust of Mr Kolya's submissions about this and the other tax returns he prepared for Ms Zucchelli is that she instructed him about her expenses and authorised him to include the deductions claimed. Ms Zucchelli staunchly denies that she did so. I prefer Ms Zucchelli's evidence on this point[110]. It appears to me that Ms Zucchelli has little knowledge of taxation matters and she relied on the advice she obtained from Mr Kolya.
9. It is not necessary to proceed further to address detailed issues relating to Mr Kolya's knowledge and ability or the level of his competence in providing tax agent services prior to making his application for transitional registration. Nor is it necessary to recite in detail the evidence and submissions made on this point. I have carefully considered the evidence[111] and the submissions made, in particular Mr Kolya's oral and extensive written submissions, in relation to these matters. And I am satisfied that there are serious issues concerning Mr Kolya's tax knowledge and practices which have been traversed in evidence that, themselves, raise serious doubts about his fitness for registration. For example, Mr Kolya's evidence concerning practices to avoid scrutiny, by applying general rules for deductions on the basis of income proportionality for example[112], is troubling; the evidence of Mr and Mrs Lebbie addressing tardy and unprofessional practice by Mr Kolya is of concern; and the evidence concerning Mr Kolya's inclusion of deduction claims without a proper basis, such as deductions claimed on Ms Zucchelli's account, is disturbing. Conduct of this kind is not consistent with the standards that are required and expected of a tax agent.
10. Mr Kolya asserts that he is held in high regard by his numerous clients, with but few exceptions or complaints. But this is not established by the present evidence. Mr Kolya's assertion that any complaints against the quality of his tax agent services are ill-founded and malicious, and they should not be given any weight, is not supported by any reliable evidence and it is not made out. The assertions and allegations of improper conduct he has levelled against officers of the Board (and its predecessor in NSW) and others involved in representing the Board, including in these proceedings, too, are not made out.
11. These matters weigh against Mr Kolya's good fame, integrity and character and whether he is a fit and proper person for registration as a tax agent.

Is Mr Kolya of good fame, integrity and character?

1. Mr Kolya urged me to accept that he is of good fame, integrity and character. He relies on character references and alleged associations with eminent people - "friends in high places". He points to his membership of professional organisations and to his registration as a migration agent. He asserts that he is involved with charitable and church-based activities. He says that he acts with integrity in all his dealings with clients, the Board and the Tax Office. He relies on evidence from clients who attest to his good character.
2. While it is possible that Mr Kolya has a personal association and ongoing personal relations with the President and the First Lady of the United States of America, Prime Minister Gillard, Kevin Rudd MP and other eminent people, as he claims, the present evidence (in the form of formulaic emails[113]) does not establish this. It appears that Mr Kolya has been involved in the Belconnen sub-branch of the Australian Labor Party and, in that context, obtained access to local and Federal Ministers, and at least one character reference[114]. Associations of this kind are not consistent with the kind of associations and relationships that Mr Kolya has painted in his evidence, in which he is allegedly held in high regard by such people; nor are they evidence of his good fame, integrity or character. Good fame, integrity and character cannot be established by alleged associations with eminent people, alone.
3. Mr Kolya's membership of the Association of Tax and Management Accountants, the Law Institute of Victoria and the Migration Institute of Australia simply demonstrates that he satisfied the requirements for membership of those organisations. The present evidence does not establish what those membership requirements are. Nor does it illuminate the information Mr Kolya provided in support of his applications for new or continuing membership. The simple fact that Mr Kolya is a member of these organisations, alone, without evidence of the membership requirements and the information Mr Kolya placed before each organisation, adds but little to his case.
4. Mr Kolya's registration as a migration agent is a relevant matter. Under section 290 of the Migration Act 1958 (the Migration Act), a person must not be registered as a migration agent if he or she is not a fit and proper person to give migration assistance or is not a person of integrity. Mr Kolya was registered by the Migration Agents Registration Authority on 20 June 2009[115], although it is not clear on the present evidence when he was first registered as a migration agent - there is some evidence that he was registered in 2008. Nevertheless, it appears that the Registration Authority was satisfied that he met the criteria for registration as a migration agent when it conferred or extended his registration in June 2009. There are three things to say about this. Firstly, it is not clear what evidence the Registration Authority had before it when it decided Mr Kolya's application for registration at that time. Secondly, a certificate of registration, alone, does not establish anything but the grant of registration at a point in time. And thirdly, his registration as a migration agent is of general relevance to issues concerning Mr Kolya's fitness, propriety and integrity, but it does not go directly to the central issues in these proceedings: Mr Kolya's registration as a tax agent under the Services Act. Without more, the simple fact of Mr Kolya's registration as a migration agent adds something, but it does not add much, to this aspect of his case.
5. Mr Kolya's assertions in relation to charitable, church or pro bono work are not made out. He adduced no evidence concerning his charitable or church work. Mr Kolya's assertion that he "introduced a Pro Bono service in my practice in 2004 for the worse off taxpayers or those with a minor tax paid where we prepare and lodge their returns for free"[116] is not supported by any probative or reliable evidence.
6. It appears that the evidence of Mr Applebee, Ms Onio and Mr Vranko, supporting Mr Kolya, was raised on the false assumption that he was a registered tax agent, possibly seeking renewal of his registration. Mr Applebee and Ms Onio expressly stated that the revelation about Mr Kolya's lack of tax agent registration would cause them to change their complimentary evidence about him. I note the written and oral evidence of Edward and Belinda Lebbie[117] and Ms Zucchelli[118] concerning their dealings with Mr Kolya and the complaints they lodged against him with the Board. Mr Kolya's efforts to attack the credit of these witnesses were not persuasive or well founded. I found their evidence to be compelling and reliable, and I accept it. Mr Kolya's aspersions about the integrity of these witnesses are not made out.
7. Mr Kolya says that some of those who have made complaints against him are motivated by ill-will. He asserts that a concerted effort to block his registration as a tax agent has been conducted over many years by officers of the Tax Office, H&R Block, the NSW Board, the Board and the Australian Government Solicitor, acting for the Board, in which baseless assertions have been made about him, evidence (including in these proceedings) has been fabricated or misrepresented, and his good character and reputation have been impugned. On the present evidence these allegations are not made out and lack any substantial basis. That being so, it is quite apparent to me that Mr Kolya's allegations against the Board and its predecessor in NSW, and against the Tax Office, are not consistent with the respect and mutual trust that must exist between these entities and registered tax agents.
8. In sum on this point, there are serious doubts about Mr Kolya's good fame, integrity and character. The evidence supporting Mr Kolya's claims to good fame, integrity and character rises, in part at least, on false assumptions. There is powerful evidence that he has misled clients about his tax agent registration. He has provided incorrect information to the Board about his previous tax agent registration, and about his previous relevant experience and his qualifications. And I am satisfied that he knew, or had good reason to know, that this information was incorrect at the time he provided it to the Board. He has misrepresented the affiliate program that was approved by HRB Innovations as an authority to prepare tax returns and to use a tax agent number registered to the Belconnen office franchise of H&R Block Limited when no such authority was conferred by that program.
9. Considering the relevant factors and the evidence which I have addressed in some detail, on balance, I am reasonably satisfied that Mr Kolya is not a person of good fame, integrity and character for the purposes of sections 20-5 and 20-15 of the Services Act. Furthermore, I am reasonably satisfied that Mr Kolya's conduct in respect of tax agent services is not consistent with the applicable standards.
10. In sum, that being so, in all the circumstances, I am reasonably satisfied that Mr Kolya is not a fit and proper person and he is not eligible for registration as a tax agent under the Services Act or under special rule 13 of the Transitional Act. That being so, it is not necessary to consider other eligibility criteria for transitional registration under special rule 13.
11. The decision under review in application 2010/4695 is affirmed.

SHOULD MR KOLYA'S TRANSITIONAL REGISTRATION AS A BAS AGENT BE TERMINATED?

1. Registration as a BAS Agent may be terminated in certain circumstances[119], for example if the person is convicted of a 'serious taxation offence' as defined[120], or if the person ceases to meet one of the tax practitioner registration requirements under subdivision 20-A of the Services Act[121]. Subdivision 20-A applies eligibility criteria for registration as a tax agent or a BAS agent that are set out in sections 20-5 and 20-15, concerning, relevantly, the 'fit and proper person' test, to which I have already referred. The eligibility requirements for registration as a BAS agent are prescribed in Regulation 7 and Part 1, Schedule 2 of the Regulations. As can be seen, however, the termination of registration as a BAS agent is a discretion that is enlivened if one of the termination criteria set out in section 40-5 is established.
2. Mr Kolya holds transitional registration as a BAS agent under special rule 5 of the Transitional Act. The Board's decision to terminate this registration was stayed by the Tribunal[122].
3. In Mr Kolya's submission, there are no grounds for his transitional registration to be terminated as he has not been convicted of a serious taxation offence and he is a fit and proper person.
4. Even though, as I have said, it is correct that Mr Kolya has not been convicted of a serious taxation offence, I have found that he is not a fit and proper person for the purposes of the tax practitioner registration requirements under sections 20-5 and 20-15 of the Services Act. In the circumstances, I am reasonably satisfied that this finding holds for the purposes of registration as a BAS agent. The nature and the extent of the findings against Mr Kolya's good fame, integrity and character, and his fitness and propriety for registration under the Services Act, compel an adverse finding on this point. It follows, applying section 40-5(1) the discretion to terminate Mr Kolya's registration as a BAS agent is enlivened.
5. The discretion to terminate a person's registration as a BAS agent is not to be used as punishment. The purpose of the power is to protect the public from exposure to services that do not meet the requisite professional standards. For the reasons already stated and on the present evidence, I am reasonably satisfied that Mr Kolya has not adhered to those standards in his activities relating to tax agent services. That is so, even though little evidence was adduced in respect of Mr Kolya's provision of BAS agent services, specifically. Mr Kolya's conduct in providing tax agent services is not consistent with the standards required for registration. His protestations concerning his claim to have many years professional experience as a tax expert are not consistent with the facts, and they are far from compelling.
6. No detailed evidence was adduced concerning the effect on Mr Kolya of the termination of his transitional registration as a BAS agent. And no submissions were made about the discretion to impose a period in which Mr Kolya should be prevented from making any further application for registration. Nevertheless, I am satisfied that both parties were well aware of the issues and that Mr Kolya was given a reasonable opportunity to present all aspects of his case. He addressed the effects of termination of his registration at an earlier stage of the proceedings, when his application for a stay of the Board's decision was heard. Clearly, he was on notice that this was a live issue.
7. In all likelihood terminating Mr Kolya's BAS agent registration will adversely affect his Taxfinassist Centre business, at least to the extent of that part of the business that provides BAS agent services. It appears that in the stay hearing in respect of this matter, Mr Kolya informed the Tribunal that "only a small proportion of his business is involved in handling BAS applications and objections"[123]. On that basis, it appears that the termination of his registration will have but little effect on his business and his employees. I also note, however, that Mr Kolya gave evidence before me that he provided BAS services to 380 clients annually and this represented approximately 50 percent of his business, in terms of work and income[124]. To my mind 50 percent is rather greater than a small proportion. Whichever of these inconsistent estimates is correct, it can be accepted that terminating Mr Kolya's registration as a BAS agent will have an effect on his business and his income. His BAS clients will be affected. His income will be affected, even though his business interests are not confined to the provision of BAS services.
8. Against this, however, the issues I have addressed and the findings I have made concerning Mr Kolya's fitness and propriety for the purposes of registration as a BAS agent must be weighed.
9. I note that Mr Kolya is registered and apparently practices as a migration agent. He informed me that he prepares tax returns for clients overseas. It appears that Mr Kolya will not be left without income if his registration is terminated. Furthermore, his wife is employed by the Tax Office.
10. To my mind, this is a case in which it is appropriate in all the circumstances to exercise the discretion to terminate Mr Kolya's transitional registration as a BAS agent. But it is not appropriate or necessary to impose a period in which he may not make a further application to the Board for registration.
11. The decision under review in application 2011/0005 is affirmed.

1. Mr Kolya is not a fit and proper person for registrations as a tax agent or as a BAS agent. For this reason his application for registration as a tax agent is not made out, and the reviewable decision refusing his application for registration must be affirmed. Similarly, his challenge to the Board's reviewable decision to terminate his registration as a BAS agent is not made out. He is not a fit and proper person for registration as a BAS agent and, in all the circumstances, it is appropriate to exercise the discretion to terminate his registration. Accordingly, that decision must be affirmed.

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed: ..............[sgd]................................................................

Solicitors for the Respondent Mr T. Giugni and Ms I. Sekler

[2] Sch 1 item 7, Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

[3] s 20-5, Tax Agent Services Act 2009 (Cth).

[4] See reg 8 and pt 5 sch 2 items 201 - 206, Tax Agent Services Regulations 2009 (Cth).

[5] s 20-5, Tax Agent Services Act 2009 (Cth); sch 2 item 13, Tax Agent Services (Transitional Provisions and Consequential Arrangements) Act 2009 (Cth).

[6] [1995] FCA 1496; (1995) 59 FCR 221 at 232.

[7] Australian Broadcasting Tribunal v Bond & Others [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ at 348-349.

[8] Hughes and Vale Pty Ltd and Another v State of New South Wales and Others (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156.

[9] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Toohey and Gaudron JJ at 380.

[10] s 90-5, Tax Agent Services Act 2009 (Cth).

[11] s 2-5, Tax Agent Services Act 2009 (Cth).

[12] s 30-10, Tax Agent Services Act 2009 (Cth).

[19] See T22 folio 51, T27 folio 59 and Exhibit R3, Attachment C, for example.

[20] See T60 folio 139 and T79 folio 213 for example.

[22] Exhibit R5, Attachment B, Annexure 1.

[26] Exhibit R5, Attachment B, Annexure 3, p5.

[31] Exhibit R5, Attachment B, p2; T17 folio 43.

[34] Exhibit R5, Attachment B, Annexure 3, pp5-6.

[38] Exhibit R5, Attachment B, Annexure 3, p2.

[42] Exhibit R5, Attachment B, p1; T17 folio 42; T53 folio 114.

[46] Exhibit R5, Attachment B, Annexures 1-4.

[48] Exhibit R5, Attachment B, Annexure 2; T59 folios 136-137 refer.

[49] Stasos v Tax Agents Board [1990] FCA 379; (1990) 21 ALD 437 at 443-444.

[50] Re Cowlishaw and Tax Agents' Board of Queensland [1999] AATA 412 at [9].

[53] Exhibit R5, Attachment B, Annexure 1; Exhibit R6.

[54] See Exhibit R6, Attachment E, p10, for example.

[58] Transcript, 11 July 2011, pp22-25.

[70] T59 folio 133, T29 and Exhibit R1.

[77] T62 folios 149 and 150; T13 folio 37 refers.

[80] See T89 folio 260 and T11 folios 34-35, for example.

[81] T77 folio 203-204; T 70 folios 171-172 refers.

[83] Transcript, 11 July 2011, pp31-32.

[84] Transcript, 11 July 2011, pp37-42.

[95] s 30-10, Tax Agent Services Act 2009 (Cth).

[96] See reg 5 and sch 2 items 206 and 207, Tax Agent Services Regulations 2009 (Cth).

[98] Transcript, 12 July 2011, pp205-208.

[101] Transcript, 12 July 2011, pp219-220.

[104] Transcript, 12 July 2011, pp226-227.

[105] Transcript, 11 July 2011, pp34-36.

[106] See Transcript, 12 July 2011, pp184-185, for example.

[107] See Transcript, 11 July 2011, pp53-67.

[110] See, for example, Transcript, 11 July 2011, pp53-66 and 12 July 2011, pp174-193.

[111] Including Exhibits A1, A2, A3, A4, A5, A6, A7, A8, A10, A11, R3, R4 and R6.

[112] See, for example, Transcript, 11 July 2011, p63.

[113] See T24, T25, T43, T45, T47, T48, T50 and T65.

[119] s 40-5, Tax Agent Services Act 2009 (Cth).

[120] s 90-1, Tax Agent Services Act 2009 (Cth).

[121] ss 40-5 and 20-45, Tax Agent Services Act 2009 (Cth).

[122] Re Kolya and Tax Practitioners Board [2011] AATA 73.

[123] Re Kolya and Tax Practitioners Board [2011] AATA 73 at [54].