Tax Agents - Tax Practitioners Board - registration as a tax agent - whether applicant satisfies relevant experience criteria - Decision to refuse application for registration affirmed

Administrative Appeals Tribunal Act 1975 (Cth) (repealed)

Administrative Review Tribunal Act 2024 (Cth)

Fair Work Act 2009 (Cth)

Tax Agent Services Act 2009 (Cth)

Tax Agent Services Regulations 2009 (Cth) (repealed)

Tax Agent Services Regulations 2022 (Cth)

Jayaretnam and Tax Practitioners Board [2016] AATA 421

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 55

Shi v Migration Agents Registration Authority 235 CLR 286; [2008] HCA 31

1. By application lodged 13 December 2023 (application), Mr Dennis, the applicant, applied to the respondent (Board) for registration as a tax agent pursuant to s 20-25(1) of the Tax Agent Services Act 2009 (Cth) (TAS Act). Mr Dennis contended he satisfied the requirements for registration including those found in cl 201 of Sch 2 of the Tax Agent Services Regulations 2022 (Cth) (TAS Regulation).
2. On 24 April 2024, the Board rejected the application. This was because the Board was not satisfied Mr Dennis had undertaken relevant experience as required by cl 201(d) of the TAS Regulation. Mr Dennis was advised of this decision by letter dated 16 May 2024.
3. By application dated 6 June 2024 (review application), Mr Dennis applied to the Administrative Appeals Tribunal (AAT) for review of the decision under the former Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act). Following the repeal of the AAT Act and the enactment of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Administrative Review Tribunal was authorised to determine the review application.
4. For the reasons that follow, I have decided that the decision to reject the application for registration should be affirmed.

1. This review application was heard by audio video link on 8 April 2025.
2. Mr Dennis represented himself and the Board was represented by Ms Luck of Counsel.
3. Pursuant to directions of the Tribunal, each of the parties had provided a statement of facts, issues and contentions (SFICS) in support of their respective positions, together with various documentary evidence originally provided to the Board by Mr Dennis, in support of his application.
4. The documentary material provided to the Tribunal is contained in three volumes entitled "Tribunal Joint Hearing Book" (Tribunal Bundle/TB), and Respondent's List of Authorities (being volumes 2 and 3). The parties also relied on written and oral submissions.
5. The documentary material included three documents entitled "Statement of relevant experience tax agent" (SRE) completed by Mr Nee Wui (Keith) Lee, a Practice Manager of Etaxlocal Accountants Pty Ltd (Etax). Etax was the company for which Mr Dennis had undertaken work said to constitute relevant experience for the purpose of his application. Mr Lee is a registered tax agent.
6. The SRE is a printed form provided by the Board to applicants seeking registration as tax agents. The form requires completion by the person supervising the applicant for registration. The form includes:

(a) this details of the name of the supervising tax agent (section 2); > > (b) details concerning work said to constitute substantial involvement in the provision of tax agent services or substantial involvement in the practice of a particular area of taxation law relating to tax agent services (section 4); > > (c) the period in which the services were provided (section 5); > > (d) an opinion from the supervisor as to the competence of the applicant (section 6); and > > (e) a summary of the tax agent services provided (section 7).

7. As noted above, there were three SREs provided by Mr Lee. These are dated 14 November 2022 (TB 107), 18 November 2022 (TB 96) and 9 January 2024 (TB 124). There was some confusion arising from the sequence in which these were provided to the Board. However, nothing turns on this fact.
8. The significant difference between the first and the last two is that Mr Lee stated in the SRE dated 14 November 2022, in section 5 (TB 108), that Mr Dennis had worked 1 hour per week, whereas each of the SREs, dated 18 November 2022 and 9 January 2024, stated Mr Dennis had worked 15 hours per week. As will be explained below, the time worked is relevant because there is an issue about whether Mr Dennis had undertaken relevant experience in order to qualify for registration as a tax agent as required by cl 201(d) of the TAS Regulation.
9. In respect of the third SRE dated 9 January 2024, Mr Lee declared the following information to be true:

Between the period of 1 July 2014 on 31 December 2023 Mr Dennis had worked 15 hours per week for Etax.

Having answered yes to the question of "Did the applicant's relevant experience include substantial involvement" in the required areas as defined in cl 212 of the TAS Regulation, Mr Lee described the work undertaken by Mr Dennis has follows:

Assisting clients with the actual tax preparation; assisting with the relevant source documents of the clients and at times assisting the clients with obtaining the actual source documents. (i.e. HBF statements, Bank interest statements, etc.,)

Reconciling source documents

Preparation of depreciation schedules

Inputting data to the BAS templates, Rental schedules, etc.

Between the period 1 July 2014 on 31 December 2023 Mr Dennis had worked 15 hours per week.

Commenting on the competency of Mr Dennis, Mr Lees said:

EtaxLocal Accountants is an Online tax agent, all tax returns are completed online.

Eugene is our External member who assisting client with tax preparation. We would prepare and lodge the tax return.

Given his role as an external member, we do not show any concern for his competence in the provision of tax agent services.

Section 7 of the SRE was a summary of the tax agent services provided.

1. Mr Lee did not otherwise provide a written statement to the Tribunal.
2. As to the evidence of Mr Dennis, he did not provide a written statement to the Tribunal. However, he relied on his original application to the Board. He also gave sworn oral evidence at the hearing concerning his application. His oral evidence included evidence concerning his work with Etax from December 2023 until the hearing of this application, and his current employment. This evidence was to the following effect:

(a) Mr Dennis worked with Etax from December 2023 until his services were terminated in February 2025. This work continued the same basis as prior to December 2023. > > (b) Since February 2025 he is not undertaken work to which the present application relates. > > (c) Work he has carried has included bookkeeping and auditing, his clients including charitable organisations. > > (d) In addition to accounting work, is also a registered teacher, teaching year 12 students.

3. In relation to his company known as Cherryland (Australia) Pty Ltd, which previously had a services agreement with Etax dated 7 October 2013, Mr Dennis explained in his oral evidence that he initially provided services to Etax through this company. The company was dissolved prior to 2019, that is more than 5 years prior to the determination of his application to the Board. The agreement is found at TB 232.
4. Since that time, Mr Dennis had a personal contract with Etax and was paid on the basis of the invoices found at TB 254-327 (Invoices). As such, Mr Dennis accepted that the agreement between Cherryland and Etax was not relevant to this review application.
5. In relation to the Invoices, Mr Dennis was asked by the Tribunal how the Tribunal was to ascertain what work was done from these documents. Mr Dennis said that he did not create the invoices and that they simply record he was paid on a piecemeal basis. He accepted there was no information in the invoices regarding the work done, the time spent or for whom. In this regard, Mr Dennis indicated that he relied on the SREs to establish relevant experience in support of his application.
6. When asked what the SREs establish, Mr Dennis said that Etax had no concerns as to his experience and that he had worked 15 hours per week. Mr Dennis also said that he had exceeded the number of weeks required by the legislation by 6 weeks and there was no requirement in the legislation in respect of hours. In this regard, Mr Dennis referred to the notation made by Mr Sirguroh, an officer of the Board who noted in an email to Mr Dennis dated 4 March 2024 (at TB 137 and following) at TB 138:
   • The number of weeks worked by you, as per your Invoice Statement (attached) and our calculation below, is 68 which exceeds the requisite 48 weeks. However, the number of hours, as claimed by you and supported by your supervising tax agent, would be 1020 hours over 5 years (68 weeks x 15 hours per week), which is below the requisite 1680 hours.
   • In the calculations below, based on your invoice amount for the week, the probability of you having worked 15 hours average per week happens to be 12 weeks out of the total 68 weeks. This means that you might be falling even shorter than the 1020 hours as claimed by you from the above statement.
7. During the course of the hearing, the Tribunal noted that there was no statement from Mr Lee other than in the SREs and that Mr Lee had not been called as a witness. It was also noted that the SREs, which covered a 10 year period:

(a) appeared to show a reduction in the number of returns completed in the period from 2019 onwards when compared to the previous period; and > > (b) did not deal with the period from December 2023 until the Tribunal hearing in April 2025.

8. Mr Dennis was informed by the Tribunal that he may apply for an adjournment and/or seek to call Mr Lee if he wished to provide additional evidence to support his application. In this regard, it was common ground in the review application that the substantial question for resolution was whether Mr Dennis satisfied the requirements of cl 201(d) of the TAS Regulation.
9. Mr Dennis indicated that he wished to proceed on the basis of the material before the Tribunal and did not require an adjournment.

1. In his application for review to the Tribunal, Mr Dennis identified the error in the decision of the Board in the following terms:

The Tax Practice Board has advised me as per their letter to me on 04 March 2024 as follows: > > The number of weeks worked by you, as per your Invoice Statement (attached) and our calculations below, is 68, which exceeds the requisite 48 weeks. > > Therefore, under Item 201 of the Tax Agents Services Regulations 2022 which requires you to demonstrate an equivalent of 12 months full-time in the preceding 5 years. We calculate this out as (35 hours per week x 48 weeks in a year), which works out to be a total of 1680 hours over 5 years under Item 201. > > It is therefore proven beyond reasonable doubt that my relevant experience has met the requirement of item 201 under the Tax Services Regulations 2022 and my application to become a Registered Tax Agent should not have been denied. The Tax Services Regulations item 201 2022 (sic) does not include any exceptions (i.e. does not include any 'IF" or BUT ' clauses ) any makes it clear that an applicant is required to demonstrate an equivalent of 12 months full-time work in the preceding 5 years; which I have clearly demonstrated as such. > > A precedent is evident in the article printed in the "West Australian" newspaper page 8 April 9. 2024 in which the WA Police Force needed to address an issue in the Industrial Relations Commission as the WA Police refused to pay overtime of a Police Officer who was required to travel to the United Kingdom on a long haul air flight. The WA Police did not regard the 'travel time' of their Police Officer as 'on duty' or 'working' and thereby the WA Police refused to pay the Police Officer. However, the Industrial Relation Commission ruled that 'time spent travelling on a flight to a destination where work is done should be regarded as time spent working; and the Police Officer received the required payment. > > Therefore, the ambiguity of the item 201 under the Tax Services Regulations 2022 should be interpreted as the 15 hours per week that I actually worked should be regarded as 'WORK'.

2. In his SFICs and submissions in support of his claim, Mr Dennis made the following submissions:

(a) He met the relevant experience requirements in cl 201(d) of the TAS Regulation. In this regard he noted that "the equivalent of 12 months of full-time relevant experience (i.e. the [TAS Regulation] item 201(d) requirement are not clearly defined in the [TAS Regulation] or the [TAS Act]." > > (b) The Board did not have regard to the comments of the Case Officer Mr Sirguroh, where he determined Mr Dennis had exceeded the requirement to work 48 weeks, having worked 68 weeks as calculated by the Case Officer. Reference was made to the email of Mr Sirguroh dated 4 March 2024. > > (c) Applicable case law is not definitive of the way in which relevant experience is to be calculated. Reference was made to the decision of Jayaretnam and Tax Practitioners Board[1] (Jayaretnam) and the comments of Senior Member PW Taylor SC at [39] in which the Member expressed scepticism about the proposition that hours worked provide an appropriate means to assess relevant experience. Reference was also made to a dispute between Sergeant Dueman and the Western Australian Police Force concerning ambiguity about what is work and working time. > > (d) The SREs demonstrate relevant experience including the requirement for substantial involvement in the provision of tax services and competency. In addition, of his work and the information recorded at section 7 of the SRE (as set out above) Mr Dennis says: > > Percentage of working time providing tax agent services years 1 to 10 is shown as 100 per cent. > > And, to enable me as a contractor (External member) to have completed the various tax returns shown above, I provide the following duties

• - meeting with the client at the client's premises which entails driving to the client's premises which could be at times 100 km from my home office. The entire trip may take about 2 hours in total.
• - Assisting clients with the actual tax preparation; assisting with the relevant source documents of the clients' ended time assisting the clients' with obtaining the actual source documents. (ie HBF statements, Bank interest statements, etc.,)

• - preparation of the depreciation schedules
• - marketing my services to retain existing clients and the sourcing of new clients given the very competitive tax environment
• - inputting data to Etax BAS templates, Rental schedules, etc.,

Invariably I dedicate 2.5 hours to 3 hours per day x 5-day week to these bookkeeping and Tax activities.

These matters, Mr Dennis submits, demonstrates he has undertaken at least one year of full-time relevant experience (or part-time equivalent) in the last 5 years.

(e) The calculations performed by Mr Sirguroh support the view that Mr Dennis had undertaken a period which, on an equivalent basis, was greater than 48 weeks required.

(f) Further, Mr Dennis said:

For the relevant period (between 2019-2023) Statement of Experience could be calculated at 3600 hours (calculated at 15 hours per week, working for 48 weeks per year, over 5 years);

In the case of Jayaretnam, the AAT determined that approximately 1,500 hours of work was considered reasonably equivalent to the required period of full-time experience under supervision and control.

...

Therefore, the application is eligible for registration under subsection 20-5(1) of the [TAS Act] and the Registration Application must be approved.

Accordingly, the Decision under Review was NOT correct and should be OVERRULED.

1. At this point, I should note the calculation suggesting Mr Dennis has work 3600 hours is not supported by the invoices paid by Etax. Nor is the submission supported by his response to the Board's submissions in reply. In his response (TB 225), Mr Dennis says:

As per the Tax Agents Services Regulations 2022 item 201 I am required to demonstrate that my Relevant experience is equivalent to 12 months full-time experience in the past 5 years. > > The Client Services Complex Regulations Officer ... as per his email of 14 February 2024 has confirmed that, my relevant experience is as follows: > > Worked 15 hours per week (supported by the supervising tax agent Mr Nee Wui Lee's statement of Relevant Experience) works out to be a total of 1680 hours over 5 years; (ie 1680 hours or 68 weeks). > > Therefore, BUT FOR having worked 15 hours per week over the preceding 5 years I have obtained the relevant experience required by the TPB for tax agents and no other probability implications should be applicable accordingly. (ie any implication in the legislation should not be considered unless expressly stated by the legislation).

2. In summary, Mr Dennis submits he has the qualifications, training and experience required by s 20-25 of the TAS Act and cl 201 of the TAS Regulation and therefore is entitled to be registered as a tax agent.
3. In making these submissions, Mr Dennis accepted that one of the objects of the TAS Act "is to support public trust and confidence in the integrity of the tax profession and of the tax system by ensuring that tax agent services are provided to the community in accordance with the appropriate standards of professional and ethical conduct".
4. In reply, the Board submitted that an applicant for registration must have undertaken at least 1 year of full-time relevant experience (or part-time equivalent) in the last 5 years, the question being whether the work undertaken by Mr Dennis qualifies on a part-time equivalent basis.
5. The Board submits at [14] of its written submissions (TB 212-3)

The terms "full-time" or "part-time equivalent" are not defined in the [TAS Regulation]. The Respondent generally calculates the part-time equivalent hours of 12 months full-time relevant experience based on a formula, which assumes that full-time means an average of 35 hours per week for 44 weeks a year, equating to 1540 hours a year. The respondent acknowledges that the Tribunal has previously found that the part-time equivalent might involve at least 1,500 hours worked per year.

6. In the footnotes to that submission, the Board notes the following:

(g) Document 19 to attachment B of T3 at [TB 137] incorrectly states the formula to be 35 hours per week for 48 weeks in a year, equating to 1680 hours a year (being the formula used by the Respondent until 11 October 2016). Even applying the correct formula (totalling 1540 hours a year), the applicant still falls short of the required hours of relevant experience; and > > (h) The reference to the "Tribunal" having "previously found that the part-time equivalent might be at least 1,500 hours worked per year" was a reference to the decision of the AAT in Jayaretnam.

7. In passing, I note it is unclear from where the 44 weeks per year referred to in the Board's submission is derived. Mathematically, I assume that from 52 weeks the respondent has deducted 4 weeks for annual leave and 4 weeks for sick/personal leave.
8. Be that as it may, the Board says its approach to calculating the part-time equivalent is reasonable and the presumed full-time equivalent calculation of 35 hours per week and 44 weeks per year is more favourable to the applicant "than, for example, minimum entitlements under the Fair Work Act 2009 (Cth) or the traditional view of a 38-hour working week". Further, the board's approach is consistent with the Tribunal's finding in Jayaretnam of not less than 1,500 hours a year is required.
9. The Board also submits Mr Dennis has not provided any updated information regarding his relevant experience for the 5 year period immediately prior to the hearing by the Tribunal. Reference is made to the decision of the High Court in Shi v Migration Agents Registration Authority (Shi).[2]
10. Consequently, the Board submits that the assertion by Mr Dennis that he undertook 15 hours of relevant work per week would lead to the conclusion that he worked a total of 1020 hours based on a 68 week period over 5 years prior to making the application. In the absence of evidence of additional weeks work there is no basis for the Tribunal to find that Mr Dennis meets the experience requirements for the purpose of s 20-5(1)(b) of the TAS Act "on any reasonable understanding of 'part-time equivalent'".
11. Further, the Board submits Mr Dennis may in fact have worked fewer hours of relevant work experience, including the requisite level of supervision and control having regard to the following matters:

(a) Etax is an online tax agent and all returns completed online; > > (b) the evidence of Mr Lee is that Mr Dennis completed between 10 and 15 tax returns and between 4 and 10 activity statements in each year within the relevant period to 2023; > > (c) the records of Mr Dennis disclose he invoiced Etax for services provided to Etax in amounts that were commensurate with significantly fewer hours worked than is alleged by Mr Dennis, such discrepancy not being capable of explanation by reference to "piece work"; > > (d) Mr Dennis has included additional services which are not "tax agent services" such as bookkeeping, marketing, administration and travel time in his calculation of hours of relevant experience; > > (e) the statement by Mr Lee that Mr Dennis was an external member who would assist clients with tax preparation and that Etax "would prepare and lodge the tax return".

12. For these reasons, the Board submits that the application for registration should be rejected in accordance with subs 20-25(1) of the TAS Act and that the decision under review should be affirmed.

1. In an application for review to this Tribunal, the role of the Tribunal is to determine the correct or preferable decision based on the material then before the Tribunal. Unless there is some statutory constraint, the consideration of the Tribunal is not limited to the material before the original decision maker to which the review application relates. In this regard, the decision of the High Court in Shi in respect of the former Administrative Appeals Tribunal,[3] is equally applicable to this Tribunal, the role and powers of the Tribunal under ss 54 and 105 of the ART Act being in similar terms to those previously found in s 43 of the AAT Act.
2. Part 2 of the TAS Act regulates the registration of tax agents.
3. In respect of individuals, s 20-5 (1) provides:

20-5 Eligibility for registration as registered tax agent or BAS agent > > Individuals > > (1) An individual, aged 18 years or more, is eligible for registration as a *registered tax agent or BAS agent if the Board is satisfied that: > > (a) the individual is a fit and proper person; and > > (b) the individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registration as a registered tax agent or BAS agent; and > > (c) in the case of registration which is not a renewal - the individual maintains, or will be able to maintain, professional indemnity insurance that meets the Board's requirements; and > > (d) in the case of a renewal of registration - the individual: > > (i) maintains, at the time of applying for registration, professional indemnity insurance that meets the Board's requirements; and > > (ii) has completed continuing professional education that meets the Board's requirements. > > Note 1: An individual in the capacity of trustee of a trust can be registered: see section 70-15. > > Note 2: Subsection (4) provides for an exception to paragraph (1)(b) for pre-1988 tax agents and nominees.

4. Subdivision 20-B - Applying for registration of the TAS Act sets out the provisions concerning applying for and determination of an application for registration.
5. Section 20-25 provides:

20-25 Registration > > Grant of application for registration > > (1) If you have applied to the Board for a type of registration, the Board must grant your application if you are eligible for registration of that type. Otherwise, the Board must reject your application. > > (2) The Board must decide your application within 4 months of receiving it. > > (3) If the Board does not decide your application within 4 months of receiving it, the Board is taken to have rejected your application. However, this does not apply if your application is for renewal of your registration. > > Note: For renewals of registration, see section 20-5

6. As is evident from s 20-25(1) of the TAS Act, the Board must reject the application if the eligibility requirements of the TAS Act and TAS Regulation are not met.
7. Schedule 2 Part 2 of the TAS Regulation prescribes requirements applicable to individuals seeking registration. Relevant to Mr Dennis and this decision, in respect of individuals seeking registration on the basis they hold a tertiary qualification in accounting, cl 201 of the provides:

Tertiary qualifications - accounting > > 201 This clause applies if the individual: > > (a) has been awarded either: > > (i) a degree, or a post graduate award, in accounting from an Australian tertiary education institution; or > > (ii) a degree, or an award, in accounting that is approved by the Board, and that is from an equivalent institution; and > > (b) has successfully completed a course in commercial law that is approved by the Board; and > > (c) has successfully completed a course in Australian taxation law that is approved by the Board; and > > (d) has undertaken at least 1 year of full time relevant experience (or part time equivalent) in the last 5 years. > > Note 1: The Board may approve a course by an approval process, an accreditation scheme, or by other means. > > Note 2: For the definition of relevant experience, see clause 212 of this Part.

8. In relation to cl 201(d), the Board (or this Tribunal on review) must be satisfied that the applicant for registration "has undertaken at least 1 year of full time relevant experience (or part-time equivalent) in the last 5 years". The expression "last 5 years" refers to the period 5 years prior to the making of the application.
9. The expressions "full time" and "part-time equivalent" are not defined in the legislation.
10. Relevant experience is defined in cl 212 of the TAS Regulation as follows:

relevant experience means work by an individual: > > (a) as a registered tax agent; or > > (b) as a tax agent registered under Part VIIA of the Income Tax Assessment Act 1936 as in force immediately before 1 March 2010; or > > (c) under the supervision and control of a registered tax agent; or > > (d) under the supervision and control of a tax agent registered under Part VIIA of the Income Tax Assessment Act 1936 as in force immediately before 1 March 2010; or > > (e) as an Australian legal practitioner; or > > (f) of another kind approved by the Board; > > that includes substantial involvement in the provision of one or more of the types of tax agent services described in section 90-5 of the Act, or substantial involvement in the practice of a particular area of taxation law to which one or more of those types of tax agent services relate. > > Note: The terms registered tax agent and tax agent service are defined in the Act.

11. Presently, I am concerned with "relevant experience" of Mr Dennis "under the supervision and control of a registered tax agent" (as provided in the definition in cl 212(c) of the TAS Regulation) on a "part-time equivalent" basis, which experience must include "substantial involvement" in the provision of tax agent services described in s 90-5 of the TAS Act or in a particular area of taxation law to which such services relate.
12. In this regard, s 90-5 of the TAS Act defines tax agent services as follows:

90-5 Meaning of tax agent service > > (1) A tax agent service is any service: > > (a) that relates to: > > (i) ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or > > (ii) advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or > > (iii) representing an entity in their dealings with the Commissioner; and > > (b) that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes: > > (i) to satisfy liabilities or obligations that arise, or could arise, under a taxation law; > > (ii) to claim entitlements that arise, or could arise, under a taxation law. > > (2) A service specified in the regulations for the purposes of this subsection is not a tax agent service. > > Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

13. Similar provisions, previously found in cls 201(d) and 207(c) of the now repealed Tax Agent Services Regulations 2009 (Cth) (repealed) (2009 Regulation), were considered by Senior Member PW Taylor SC in Jayaretnam.
14. At that time, cl 201(d) of the 2009 Regulation required that:

the individual has been engaged in the equivalent of 12 months of full-time, relevant experience in the preceding 5 years.

The definition of "relevant experience" found in cl 207(c) of the 2009 Regulation stated:

For Division 1, relevant experience means work by an individual: > > (a) as a tax agent registered under the Act; or > > (b) as a tax agent registered under Part VIIA of the Income Tax Assessment Act 1936; or > > (c) under the supervision and control of a tax agent registered under the Act; or > > (d) under the supervision and control of a tax agent registered under the previous regulatory regime contained in Part VIIA of the Income Tax Assessment Act 1936; or > > (e) as an Australian legal practitioner; or > > (f) of another kind approved by the Board; > > in the course of which the individual's work has included substantial involvement in 1 or more of the types of tax agent services described in section 90-5 of the Act, or substantial involvement in a particular area of taxation law to which 1 or more of those types of tax agent services relate.

Of the operation of the 2009 Regulation the Tribunal said:[4]

The concept of work done under supervision and control for "the equivalent of 12 months of full-time, relevant experience" (the TASR Item 201(d) requirement) is not one amenable to precise delineation. The requirement would of course be satisfied if the person's work involved a period in which their activities were exclusively involved in the provision of tax services of an advisory or representational kind. But the actual definition of "relevant experience" in TASR Schedule 2 Item 207 does not impose that actual requirement. The period of supervision and control need only include "substantial involvement in" the provision of "tax agent services". The term "substantial involvement" is used in several places within TASR Schedule 2, but it has no defined meaning. Necessarily the concepts of "relevant experience" (when required to be assessed against a criterion of "substantial involvement") and experience that is "the equivalent of 12 months full-time" involve impressionistic assessments.

At [39] the Tribunal continued:[5]

In addition, I am sceptical that comparisons of hours worked provide an appropriate way of making sound judgments about "relevant experience" and "substantial involvement" relevant to an assessment whether a period of supervision and control is relevantly equivalent to 12 months full-time such activity. The reason for my scepticism is highlighted by the limited number of tax returns with which Mr Jayaretnam has had "substantial involvement". The total number of completed individual returns is 40 (I exclude the individual returns completed after Mr Singh's registration ceased). The number of partially completed returns is 18. Thus the total number of returns (both completed and partial) is (40 plus 18 plus 10 =) 68. In effect, therefore, Mr Jayaretnam's "relevant experience" amounts to fewer than one tax return per week over a period of 20 months. I do not accept that this level of experience is equivalent to 12 months full-time relevant experience.

This last comment was made in circumstances where, in assessing a submission raised by Mr Jayaretnam concerning hours worked on a part-time basis, the Tribunal had said at [26]:

... I would regard the reasonable equivalent, if it is to be evaluated on the basis of hours worked, as one involving a figure of at least 1,500 hours per year.

Three concepts are involved in determining whether the requirements of clause 201(d) of the TAS Regulation are satisfied by Mr Dennis. These are:

(a) Time spent in gaining experience: an applicant must undertake one year of full-time relevant experience in the last five years or an equivalent period on a part-time basis; > > (b) Need for supervision and control: the required experience must be gained under the supervision and control of a registered tax agent; and > > (c) Work done in gaining relevant experience must include substantial involvement in the provision of tax agent services or in the practice of taxation law relating to those particular services. Tax services are defined in section 90-5 of the TAS Act.

Mr Dennis says he satisfied the requirement for time spent in gaining experience on the basis he worked a part-time equivalent of one year in a five year period. 21. In respect of the length of the period worked, in order to determine what is meant by "part-time equivalent", it is first necessary to determine what is meant by one year of full-time relevant experience. 22. Clause 201(d) requires that one years' full-time relevant experience must be gained in the last five years. Clause 201(d) does not specify the period in which full-time relevant experience is gained must be a continuous period of one year. To the contrary, it contemplates that a total of one year's relevant experience must be gained in the five year period prior to the application for registration being made. 23. The legislation does not define the meaning of "full-time". However, it is necessary to determine what is meant by the expression "full-time" in order to assess the amount of time that must be spent "on a part-time equivalent basis" to satisfy the "relevant experience" requirement. In my view, hours worked is a reasonable unit of measure to be adopted when seeking to determine part-time equivalent as that expression is used in the TAS Regulation. 24. In Jayaretnam, the Tribunal assumed a 35 hour working week in determining what was full-time.[6] On the other hand, the National Employment Standards, found in Part 2-2 of the Fair Work Act 2009 (Cth) (FW Act), contemplates a working week for a full time employee is a maximum of 38 hours in a week.[7] 25. In the present case, for reasons which will become apparent, it is not necessary to resolve this difference. However, I will follow the assumption of a 35 hour working week adopted by the Tribunal in Jayaretnam. This is more favourable to the Mr Dennis than using 38 hour as the base full time hours. In doing so, I note that a 35 hour week is colloquially referred to as working "9-to-5". 26. As to the expression "part-time" used in the TAS Regulation, it encompasses what might be described as persons undertaking work as a full-time employee working only part of a standard week and casual employees, the latter usually not being entitled to annual leave, sick leave etc. In either case, the time spent in undertaking relevant experience on a part-time basis must be at least "equivalent" to one year of full-time relevant experience in the last five years. 27. Having adopted the assumption of a 35 hour working week, in my view it is then necessary to adjust these hours to allow for annual leave and other entitlements to determine the amount of time that might actually be spent in undertaking work in the prescribed period. 28. In Jayaretnam, the Tribunal appeared to accept the submission that 4 weeks annual leave should be deducted and an adjustment made for sick leave.[8] The Tribunal then continued:

I would regard the reasonable equivalence period, if it is to be evaluated on the basis of hours worked, as one involving a figure of at least 1,500 hours per year.

29. In my view, it is appropriate for the purpose of calculating the notional full time equivalent period of required experience to assume that the applicant takes annual leave (the standard of which is 4 weeks) and public holidays (usually 9 or 10 days depending on the particular State or Territory). In addition, an allowance for personal leave should be made of 2 weeks in a year, on the basis that this leave is usually a maximum allowance of 4 weeks per year but will not likely be needed to be taken in full each year.
30. The result is that 44 weeks is the assumed period of actual work in any 52 week period which, at 35 hours per week, equates to 1,540 hours of actual working time. I note in passing this total would increase to 1672 if a 38 hour working week was assumed and the same allowance was made for leave and public holidays.
31. As to control and supervision, this requires the registered tax agent said to have controlled and supervised the work an applicant to in fact undertake that role.
32. Again, the legislation does not define what is required for supervision and control. The dictionary defines supervision as "a critical watching and directing (as of activities or a course of action)"[9]. Control is defined as "to exercise restraining or directing influence over"[10]. In short, more is required then simply employing a person to complete work.
33. Necessarily, appropriate evidence needs to be submitted with an application to establish that this has occurred. In the present case, that evidence includes the SREs completed by Mr Lee.
34. As to what type of work constitutes "relevant experience", it must be work that includes "substantial involvement" in the provision of tax agent services or the practice of a particular area of taxation law relating to such services. That is the work must:

(a) relate to: > > (i) ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or > > (ii) advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or > > (iii) representing an entity in their dealings with the Commissioner; and > > (b) be provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes: > > > (i) to satisfy liabilities or obligations that arise, or could arise, under a taxation law; > > > > (ii) to claim entitlements that arise, or could arise, under a taxation law.

35. Alternatively, the work must be in a particular area of taxation law relating to such work.
36. As to the requirement to be "substantially involved in the provision of one or more of the types of tax services", in my opinion this term needs to be construed in the context of the legislation and its purpose: see e.g. Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 55 per McHugh, Gummow, Kirby and Hayne JJ said at [69]. In the present case, the purpose is the registration and regulation of those persons and entities providing tax agent services: see s 2-5 Objects of the TAS Act.
37. In this context, the expression "substantially involved in" requires more than an assessment of the time spent on a particular task. Rather, it requires demonstration that the work done is substantial in the context of providing one or more tax agent services.
38. This interpretation is consistent with the prohibition against providing tax agent services unless registered,[11] and the legislative intent that a tax agent has the relevant qualifications and experience. In this regard, registration as a tax agent entitles the person so registered to provide any tax agent services unless conditions are imposed.
39. This meaning is also consistent with the approach previously taken in interpreting the expression "substantial involvement" used in the now repealed reg 156(1) of the Income Tax Regulations (Cth) (repealed). Regulation 156(2) defined relevant experience as meaning "substantial involvement in income tax matters".
40. Of this expression the Administrative Appeals Tribunal said in Mula v Tax Agents' Board of NSW:[12]

19. (a) The cases before the Tribunal indicate that relevant employment requires a substantial involvement in income tax matters, and including the categories referred to in regulation 156(2). In Re D'Alessandro and The Tax Agents' Board of Victoria 93 ATC 2028; [1993] AATA 41; (1993) 25 ATR 1037 the Tribunal observed at ATC 2034; ATR 1043: > > ``Counsel did not address us on the meaning of `substantial' in regulation 156(2). That adjective, and its adverbial form `substantially', are capable of many gradations of meaning: what they mean in a particular statutory provision depends on the context (see Commission of Superannuation v Scott [1987] FCA 79; (1987) 71 ALR 408 and the cases discussed there). At one end of the scale `substantial' may mean more than trivial, minimal or nominal and at the other end it may mean great or very considerable. The word always imports some imprecision. In the context of regulation 156 (which must be construed having regard to section 251BC(1) and section 251JA(1) of the Act and the circumstances in which those provisions were enacted), we are satisfied that the meaning of `substantial' in regulation 156(2) is well up on the scale.''

41. Similarly, in the present context, "substantially involvement in" "is well up the scale" and relates to the extent of involvement in one of the categories of the tax agent services set out in s 90-5 of the TAS Act, not simply the time spent.
42. In the case of Mr Dennis, I find the following matters are established on the evidence before me:

(a) The work undertaken by Mr Dennis related to the preparation of information for completion individual, partnership and company tax returns as well as activity statements. > > (b) The numbers and the type of returns and statements for which information was prepared each year over the 10 year period is set out in section 7 of the SRE dated 9 January 2024, extracted at paragraph 13 above. The number of tax returns and activity statements declined from a high of 75 in the 2016 year to 15 in the 2023 year. In the 5 year period prior to the making of the application, the highest number of tax returns and activity statements prepared was 23 in the 2021 year and the lowest number was 14 in the 2020 year. > > (c) Mr Dennis worked as a separate contractor and was paid on a "piece work" or "piece meal" basis. There is no evidence in the form of timesheets or other detailed records setting out what work was done in respect of each of the invoices for which he was paid. > > (d) Mr Dennis provided to Etax information relevant to the lodgement of returns with the Australian Taxation Office (ATO). Etax would then "prepare and lodge the tax return" with the ATO". > > (e) During this period, Mr Lee was the registered tax agent at Etax responsible for the supervision and control of Mr Dennis. There is no evidence concerning the nature and extent of the supervision and control by Mr Lee. While there is evidence that Mr Lee had no concern as to the competence of Mr Dennis, no evidence was provided as to how Mr Lee formed this opinion. To the contrary, the only reference is to Mr Dennis being "an external member" of Etax which suggests Mr Dennis was not in attendance in the office of Etax. There is no evidence as to the nature and extent of any review by Mr Lee of the work undertaken by Mr Dennis nor is there any evidence of communications between them in respect of particular work completed by Mr Dennis.

43. As to the hours worked, and whether Mr Dennis worked an equivalent of one year in a 5 year period, several matters require consideration.
44. First, I do not accept the submission from Mr Dennis that hours work is irrelevant in determining what is meant by the expression full-time. It cannot be correct that a person could work 5 days a week for one hour on each day and be said to work full-time as that expression is used in the legislation. As recognised in the FW Act, hours worked is the usual basis for determining whether a particular employee is working full-time.
45. In section 5 of the SRE dated 9 January 2024 Mr Lee states that Mr Dennis work 15 hours per week.
46. This statement must be considered in the context of the invoices for piecemeal work to which I have referred, the payments made to Mr Dennis as recorded in the practice management records of Etax (found at TB 156 and following), the summary of the tax agent services provided as detailed in section 7 of the SRE and the fact Mr Dennis was not working full-time.
47. This evidence shows Mr Dennis was paid on a weekly basis in respect of work done.
48. In this context, 15 hours must refer to the average time assessed by Mr Lee as having been worked by Mr Dennis in each week for which Mr Dennis was paid. It is not a statement of the hours worked per week averaged over a 5 year period. There is otherwise no evidence from Mr Lee about how the 15 hours was calculated.
49. Mr Dennis sought to contend he worked 2.5 to 3 hours per day 5 days per week. Assuming a 48 hour week, this equated to 3,600 hours in a 5 year period or 720 hours per year. The problem with this submission is it is unsupported by any time records concerning time spent working and when. It is also inconsistent with the payments made by Etax. It includes travel time which, on any view is not work that would constitute "relevant experience" Finally, it is unsupported by evidence that the work in question was supervised and controlled by Mr Lee. Consequently, I do not accept this submission.
50. The Board's analysis of which weeks in the 5 year period Mr Lee worked is found at TB 23 and following.
51. Where there is no payment in a particular week, the only available conclusion is that no work was done by Mr Dennis in that week, at least under the supervision and control of Mr Lee.
52. It follows that I am satisfied the number of weeks in which Mr Dennis work under supervision and control of Mr Lee was no more than those calculated by the Board. That is, during the 5 year period ending November 2023, Mr Dennis work no more than 68 weeks (9 +14+12+13+14+6 = 68).
53. Assuming, on the basis of the evidence of Mr Lee, 15 hours work per week, this would mean Mr Dennis worked a total of 1020 hours.
54. This is substantially less than the full-time equivalent of 1540 hours per year, being the minimum number of hours that was required to have been worked full-time or on a part-time equivalent basis in a 5 year period.
55. It follows that I am not satisfied the requirements of s 20-5 of the TAS Act have been met. In particular, I am not satisfied that Mr Dennis has undertaken the part-time equivalent of at least 1 year of full-time relevant experience in the last 5 years as required by cl 201(d) of the TAS Regulation.
56. In reaching this conclusion, I have assumed in favour of Mr Dennis that the 15 hours of work undertaken was "relevant experience" as that expression is defined in cl 212 of the TAS Regulations. However, I also have significant doubts that assumption is correct.
57. First, it would appear that Mr Dennis worked externally to Etax and prepared information that was provided to Etax and input by Mr Lee or his staff into the online lodgement system for particular clients. While Mr Lee expressed satisfaction with the work undertaken by Mr Dennis, there is no evidence concerning what Mr Lee did in respect of supervision and control of Mr Dennis. Further, it is unclear whether the work undertaken by Mr Dennis was in the context of taxation law (as that expression is used in s 90-5 of the TAS Act) as opposed to undertaking general accounting tasks.
58. Secondly, the number of tax returns and activity statements for which information was prepared was not large - the numbers declining in the 5 years relevant to the application for registration from the previous years. Regardless of time spent, the numbers of returns and statements for which work was done by Mr Dennis do not suggest "substantial involvement" in terms of providing tax agent services.
59. Be that as it may, the requirement in cl 201(d) has not been met and the application must be refused under s 20-25(1) of the TAS Act.

1. The decision of the respondent to refuse the application for registration is affirmed.

[1] [2016] AATA 421.

[2] 235 CLR 286; [2008] HCA 31 at [37]- [40].

[3] 235 CLR 286; [2008] HCA 31 at [37]- [40] per Kirby J, [98]-[100] per Hayne and Heydon JJ.

[4] [2016] AATA 421 at [9].

[5] [2016] AATA 421 at [39].

[6] [2016] AATA 421 at [27].

[8] [2016] AATA 421 at [26].

[9] Merriam-Webster Online Dictionary accessed 15 April 2025.