(d) there is a clear public interest in registered agents upholding the standards applicable to the preparation and lodgement of activity statements;

(e) the ATO's findings, which demonstrates a lack of appreciation and regard for the ATO and the taxation laws;

(f) your response in respect of the allegations made about your unauthorised access of details using the Tax Agent Portal demonstrates a lack of understanding an (sic) appreciation of the seriousness of that conduct;

(g) failure to deal with the Commissioner appropriately reflects adversely on your fitness and propriety, as a registered tax agent you are required to be of such competence, good fame, integrity and character that others may entrust their taxation affairs to your care;

(h) it was of the view that, on the basis of the matters outlined above, you are not of good fame, integrity and character and therefore you are not a fit and proper person to be registered as a tax agent.[7]

1. I will next set out the relevant legal framework and the issues for my determination, before proceeding to consider the evidence and the parties' contentions.

1. Subsection 20-5(1) of the TASA relevantly provides as follows:

Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviser

Individuals

(1) An individual, aged 18 years or more, is eligible for registration as a registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that:

(a) the individual is a fit and proper person; and

...

Criteria for determining whether an individual is a fit and proper person

In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:

(a) whether the individual is of good fame, integrity and character; ...

The Board has published an explanatory paper entitled "TPB (EP) 02/2010: Fit and proper person" which provides examples of factors that may be considered in determining whether a person is a fit and proper person, and I am satisfied that it is appropriate for me to also have regard to that document.[8]

1. As referred to above, the Code is contained in s 30-10 of the TASA and applies to all registered tax agents, BAS agents and tax (financial) advisers.[9] It relevantly provides as follows:

The Code of Professional Conduct

Honesty and integrity

...

Independence

(4) You must act lawfully in the best interests of your client.

(5) You must have in place adequate arrangements for the management of conflicts of interest that may arise in relation to the activities that you undertake in the capacity of a registered tax agent, BAS agent or tax (financial) adviser.

Confidentiality

(6) Unless you have a legal duty to do so, you must not disclose any information relating to a client's affairs to a third party without your client's permission.

Competence

(7) You must ensure that a tax agent service that you provide, or that is provided on your behalf, is provided competently.

(8) You must maintain knowledge and skills relevant to the tax agent services that you provide.

(9) You must take reasonable care in ascertaining a client's state of affairs, to the extent that ascertaining the state of those affairs is relevant to a statement you are making or a thing you are doing on behalf of the client.

(10) You must take reasonable care to ensure that taxation laws are applied correctly to the circumstances in relation to which you are providing advice to a client. ...

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.

1. The meaning of the term "fit and proper person" in this context has been considered in a number of authorities.[10]
2. In Re Su and Tax Agents' Board of South Australia,[11] Davies J said:

The function of a tax agent is to prepare and lodge income tax returns for other persons. A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.[12]

1. In Stasos v Tax Agents' Board of New South Wales,[13] Hill J agreed with Davies J's comments "subject to the qualification that his Honour stated too narrowly the functions of a tax agent by limiting these to the preparation of returns".[14] His Honour also said:

Once registered ... the tax agent must keep up to date with the massive changes to the income tax law, no easy task in the present time, so that he can properly advise and represent his clients. That is a responsibility which comes with the privileged position in which he is placed.

...

In addition to the tax agent dealing with his client, he will, almost invariably have dealings with officers of the Australian Taxation Office and perhaps ... Boards or Tribunals ... . Those dealings must be able to be carried on in an atmosphere of mutual trust. The Commissioner and his officers must be able to accept that, to the best of the ability of the tax agent, returns have been prepared which are true and accurate. This is particularly so now that the Commissioner has proceeded to a system of self assessment, with inaccuracies only coming to light in case of random audit or, presumably, other information coming to the hands of the Commissioner.

...

... a person who has been shown to be other than a fit and proper person to be registered must satisfy the Tribunal considering his re-registration or cancellation of his registration as the case may be, that he appreciates the significance of his wrongdoing, that he regrets it and that he has rehabilitated himself such that it is truly unlikely that there will be any lapse in the future of the standards which are required of him. The more serious his dereliction from duty the longer may be the time necessary to show this. It will not be sufficient for him to merely express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent.[15]

1. In Re Carbery & Associates Pty Ltd and Tax Agent's Board of Queensland,[16] the Tribunal said:

In the Tribunal's opinion the preparation of income tax returns across a wide range of businesses, professions, occupations and income sources (i.e. investments), is not to be taken lightly. It requires diligence, current knowledge of the relevant legal framework and competence in dealing with both client and the Australian Taxation Office, not to mention honesty (see: Re: Su and the Tax Agents Board, South Australia 82 ATC 4284, Davies J at 4286 and Stasos v Tax Agents' Board of NSW 90 ATC 4950, Hill J at 4959). This is especially so in the current "self-assessment" regime where penalties for failure to disclose accurate and timely information can be levied on the taxpayer client, who relies on his/her/its tax agent to guide, advise and make proper and timely disclosures. Unless a person is judged competent in all these attributes then, in the Tribunal's opinion, that person would not meet the "fit and proper" tests ... .[17]

1. It follows that in broad terms the issue for my determination is whether I am satisfied that Mrs Burnett is a fit and proper person to be registered as a tax agent. This also involves consideration of whether Mrs Burnett is "of good fame, integrity and character" within the meaning of s 20-15 of the TASA.
2. It is not in dispute that, in determining whether Mrs Burnett is a fit and proper person, the Tribunal may take into account facts and circumstances occurring after the Board made its decision.[18]
3. Mr Schatz, who appeared on behalf of the Board at the hearing, submitted that the resolution of the issue in these proceedings was likely to turn on my conclusions regarding three factual issues, broadly categorised as follows:
   • (a) Competence - whether Mrs Burnett has a proper knowledge of taxation laws, is able to competently prepare income tax returns and deal with queries from the ATO, and is a person of such competence and integrity that others may entrust their taxation affairs to her care;
   • (b) Character - whether Mrs Burnett is a person of such reputation and integrity that the ATO may be confident that the returns lodged by her are completed honestly and competently; and
   • (c) Contrition - whether Mrs Burnett appreciates the significance of her wrongdoing, has expressed remorse, and has rehabilitated herself such that there is unlikely to be a lapse in the standards required of her in the future.
4. As I agree that the evidence before me can be conveniently considered and discussed by reference to these categories, I propose to consider the evidence and set out my conclusions in relation to each of these matters in turn.

1. In calling into question Mrs Burnett's competence, the Board has relied primarily on the results of the audits of Mrs Burnett's clients for the 2010 and 2012 lodgement years, together with the evidence of two ATO employees, Ms Koudounis and Mr Majoor. Accordingly, in addressing this issue, I propose to discuss the material before me relating to the results of each audit in turn, before turning to the other evidence and outlining my conclusions.

1. The material before me indicates that an analysis of data relating to Mrs Burnett's tax agent profile for 2010 revealed that the median total of work-related expenses (WRE) claims made by Mrs Burnett exceeded her "peer group" by 3.8 times ($2,997.00 compared to $777.00)[19], and the median total refunds exceeded Mrs Burnett's "peer group" by 1.52 times ($1,991.00 compared to $1,303.00).[20]
2. As a result of this, a compliance visit was undertaken with Mrs Burnett on 2 March 2011. The findings resulting from this visit were:

● Seven returns not reasonably substantiated

● There were no satisfactory working papers for clients reviewed

● A high percentage of the claims were estimates

● No nexus or substantiation for car travel, clothing or self-education expenses

● WRE claims included 50% investment tax break

● Mislabelling of travel claims

● Unsupported estimates and apportionment of telephone and internet expenses

● Private expenses claimed[21]

1. The seven returns in question were also referred to audit, with the audit outcomes, including adjustments to the seven returns, totalling $119,408.00, with an average adjustment per amended return of $17,058.00.[22] Penalties were also imposed at the rate of 50% in one audit "as it was considered the shortfall was a result [sic] reckless behaviour".[23] Further, the errors were considered to be attributable primarily to tax agent error, resulting from either:
   • the application of an incorrect understanding of the relevant tax law by the preparer in the practice;
   • not asking clients sufficient and pertinent questions to correctly assess their work related expenses deductions when returns were prepared;

▪ not sighting the specific and necessary evidence to substantiate deductions;[24]

1. Five objections were subsequently lodged, with two having been completed and three in progress at the time of a referral to the Board on 30 November 2011.[25] The referral to the Board stated in relation to "the sample of 2010 audits undertaken" that Mrs Burnett's practice had failed to:

○ implement adequate controls to ensure that the client's state of affairs are considered sufficiently in order that a correct return is lodged.

○ Demonstrate the application of a correct understanding of the relevant tax law applicable to claims being made for lodgments through the practice.[26]

1. Of the seven taxpayers audited with respect to the 2010 tax year, at the time of the hearing before me, one had not lodged an objection and of the other six taxpayers, all of whom lodged objections, five were disallowed and one was found to be invalid. The outcome of the 2010 audit is summarised in the Table following my Reasons for Decision, which reflects the reasons for the relevant adjustments given by the ATO as contained in the original referral to the Board.[27]

1. As I have indicated above, a further audit was undertaken for the 2012 tax year, which was also the subject of a referral to the Board. That referral also included further profile data indicating that a higher proportion of Mrs Burnett's clients were claiming WRE in comparison to the reference group, with the expenses claimed being significantly higher. This was the case with respect to work-related car expenses, work-related travel expenses, work-related clothing expenses, work-related self-education expenses and other work-related expenses.[28]
2. The results of this audit are summarised in the Table below:

1. The reasons for adjustment were summarised as follows:

1. The second referral to the Board, made on 15 July 2013, summarised the issues arising from this audit as follows (omitting footnote references):
   • Claiming car-related expenses without establishment of nexus to employment, a valid log book, explanation of how mileage calculated, and claiming home to work travel ... . In one case the log book was created by Irene R Burnett for response to the audit.
   • Claiming work-related travel expenses, using the Commissioner's reasonable rates where no bona fide allowance has been paid ... or where clients were living away from home ...
   • Claiming work-related travel expenses where it was not clearly established the taxpayer was engaged in work related activity ...
   • Claims made for non eligible clothing including conventional clothing and laundry thereof ...
   • Claims made for laundry expenses not substantiated, as basis of claims was an estimate ...
   • Other work-related expenses claims where nexus not established, diaries not kept to established [sic] work-related usage for example, home office, internet, mobile phone ...
   • Other work related expenses claims not substantiated, eg: receipts for tools purchased not available
   • Other work related deductions not allowable eg: claims made for salary packaged pre tax items (parking and fees)
   • Claims for rental property interest deductions not correctly reported or calculated
   • Claims for rental expenses not substantiated
   • Claims for cost of managing tax affairs not substantiated ...[31]
2. Of the 20 taxpayers audited in 2012, it is my understanding that at the time of the hearing before me, 17 had lodged objections. Of those objections, two were disallowed, three objections were withdrawn by the client, and in one case the client withdrew part of an objection and the remainder was disallowed. In another case, the client withdrew the objection to most claims, with the balance being allowed in full. The remainder of the objections (10) were allowed in part.[32]

1. In a letter to Mrs Burnett dated 21 June 2013, the Board invited her to respond to the following results of the 2010 and 2012 audits (omitting taxpayers' names):
   1. Your response should specifically address the referral received by the Board from the ATO and the complaint received by the Board from Mr Ortmann, and in particular, provide an explanation as to why:
      • (i) You made claims in the Clients' income tax returns without substantiation of deductions and supporting documents;
      • (ii) You made claims in the Clients [sic] income tax returns for car travel, clothing or self education expenses with no nexus;
      • (iii) You made claims where no expenses were incurred;
      • (iv) There were no satisfactory working papers for the Clients reviewed;
      • (v) You claimed for private expenses on the Clients' income tax returns;
      • (vi) you did not review and amend 2 returns for the year ending 30 June 2009 for ... and ... after being asked to do so by the ATO. (see attached correspondence issued to you by the ATO dated 7 October 2009). The two returns were not amended by you and were referred to audit. The audits resulted in adjustments to the clients totalling $80,151 and penalties of $749.09;
      • (vii) you failed to take reasonable care in the preparation and lodgement of the 7 tax returns that were audited for the 2010 income tax year, and the 2 that were audited for the 2009 income tax year;
      • (viii) you made a reckless claim for motor vehicle expenses in the 2010 income tax return of ...;[33] ...
2. Mrs Burnett's response of 1 July 2013 included the following:

Since 2009/2010, the ATO has, I believe, continued an aggressive policy of disallowing deductions, across the board, of things which would normally have been allowed. In some instances seemingly against their own guidelines! "No Nexus" has become the catch cry, or "Not substantiated". This is causing tax agents to waste much time objecting to these decisions and going to the tribunal. The ATO would prefer we accept without question. This in [sic] NOT in the best interests of our clients! If this practice continues, there will be no agents for the TPB to monitor. (emphasis in original)

...

PAYG summaries are not correctly showing allowances paid, and this is being picked up by the ATO for audit. In some instances, even after proving that the summary is incorrect, deductions are disallowed.

Any sanction against me would be a victory for the ATO and a death knell for other agents and their clients, who only want to get repayment of what they are entitled to. I have worked too hard for too long to roll over and play dead for the ATO, who have said I was outside their 'normal' curve. This is probably because I have the experience and knowledge to get my clients the maximum refund allowable. This may not be in the ATO's best interest. I work within their own guidelines, but they seem to forget them, or ignore them.

...

Let me respond to your assertions in point 38.

1. I strongly rebut this. Clients provide the information. I ask each one about what they have to claim. Supplying of all documents is impractical. They give me a list of their deductions and I place the information onto the return. Only if an audit occurs do they need to supply all documentation. All clients are told to keep their vouchers etc. for 5 years. Few, if any, accounting firms would sight all documents for a tax return. All my clients sign off all their tax returns, stating the return to be true and correct.
2. I strongly rebut this. Clients are asked about clothing, logos, shoes etc. I cannot sight these. I ask for estimates from the client. Car travel is explained to them, as well as methods of deduction. The client decides which method they will use. Unfortunately ... was already doing a logbook when he came to me and I believed he knew how. If a client has done a course with their employment, I am advised. I believe no one would pay for a course that did not help their work, so a nexus is there. Client integrity is not questioned. ALL expenses were claimed according to tax law, which could be claimed in previous years. (emphasis in original).
3. I strongly rebut this. I have more integrity than that. Never have I done so. Any claim I put in has been because money was spent. Information supplied by client is assumed accurate. They sign to say it is.
4. I strongly rebut this. As an experienced accountant I can make determinations from the information supplied on the portal, as well as from the client. There is no need for extra paperwork to clog my filing system.
5. I strongly rebut this. I do not, have never, and never will, do this. A lot of these assertions arise from a visit by an aggressive agent from the ATO who did not send me a list of files she wanted to view, before arriving, refused to give me a list when asked to at my office, made outrageous statements, and threatened to have me struck off. She was asked to leave my office and a complaint was lodged by me about this 'lady'.
6. I strongly rebut this. I disagreed strongly with the ATO decision to refuse living away from home allowances, due to ... extenuating circumstances. In previous years these would be allowed. ... [h]ad documentation to back his claim, but decided it was too stressful to go to the tribunal, and paid the money. Other clients, in similar circumstances, have had their claim approved. The ATO is not consistent with their own policies. In ... case, there was no adjustment to tax payable, and, because of his negative geared properties, he was still issued the same refund.

I have no idea how the $80k is arrived at. $23,927 in work related expenses was totally disallowed for ..., and, approximately, a $12k adjustment to losses carried forward for ... . Perhaps the ATO could supply an itemised account of this.

1. I strongly rebut this. I used the same determinations, as I had in previous years, in the 2010 year. However reasonable claims were rejected. The two returns at point VI. have been explained.

4 of the other 7 are under objection at the moment. ... [h]as been to the tribunal where half his disallowed claim was finally recognised. He supplied all his documents, but was still disallowed some deductions. ... [i]s at the tribunal, as is ..., who is at hearing number 3.

Justice Dunn [sic] is taking an overly long time to make a decision on this matter, as it is a point of law which could set a precedent on the question of living away from home ruling, and the need for substantiation.

1. I strongly rebut this. This was the result of genuine mistakes. ... [w]as unaware of the correct way to keep his logbook. He was already using one when he first came to me. I believed the 50% tax break was applicable if the client had rental properties, which ... has, but it is only for small businesses. A wrongful claim was made, but the ATO was unreasonable and disallowed ALL his m.v. claims, so the matter is before the tribunal to re-establish his entitlements. (emphasis in original). ... [34]

1. When she was asked about these issues during her oral evidence at the hearing, Mrs Burnett gave similar responses to those outlined in her correspondence to the Board. In particular, she repeatedly indicated that the ATO had significantly changed its policies and/or approach to enforcement in or around 2010. She asserted that the ATO had not previously required her to provide diary entries to substantiate telephone expenses, and that she had not been aware that taxpayers were obliged to keep diaries with respect to their mobile phone expenses. She also asserted that prior to 2010, employee truck drivers had not been required to provide substantiation for incidental expenses. She maintained that at the relevant time, if a bona fide travel allowance was paid and the taxpayer could show time away from home, they could claim for the relevant days and substantiation was not required. She further asserted that from 2010 the ATO changed its policies and/or rulings with respect to the deductions which could be claimed by teachers, and "became aggressive". She also asserted that in some cases the rulings had remained the same, but the ATO's interpretation and/or application of them had changed.

1. However, this aspect of Mrs Burnett's evidence was inconsistent with the evidence of Ms Jenny Koudounis and Mr Michael Majoor, both of whom provided detailed witness statements and also gave oral evidence during the hearing.
2. Mr Majoor is currently employed by the ATO as a Senior Technical Leader, and has been qualified to practice as an accountant since 1987. In his statement[35] he referred to the applicable Taxation Rulings and Taxation Determination relating to truck drivers and went on to state:
   1. Each of the Trucking Determinations differentiated between 'reasonable travel allowance expense claims' made by employee truck drivers (covered by Table 6 at [12]) and 'reasonable travel allowance expense claims' made by various other taxpayers (covered by Tables 1-5 at [11]).
   2. Under the Trucking Determinations, employee truck drivers were only permitted to make 'travel allowance expense claims' without substantiation for food and drink expenses up to certain specified 'reasonable amounts'. Other taxpayers could make 'reasonable' travel allowance expense claims for certain other expenses such as 'accommodation' and 'incidentals' in addition to food and drink claims (eg see Table 1 at [11]). However, employee truck drivers were required to provide substantiation for any 'accommodation' or 'incidentals' expense claims they made.
   3. This differentiation appears to be based on an assumption that, as seasoned travellers who usually slept in their trucks, employee truck drivers generally did not incur 'accommodation' or 'incidentals' expenses (eg see TR 95/18 at [172] and TR 2004/6 at [72]). If such expenses were incurred, employee truck drivers were required to substantiate their claims, even before 2010. A rate for truck drivers was first published in Taxation Ruling IT 2601 on 27 December 1990.[36]
3. Mr Majoor went on to state at paragraph 11 of his statement:
   1. TR 95/18 was, and remains, the primary Taxation Ruling applicable to employee truck drivers. It was made on 16 June 1995 but is expressed to apply to years commencing before and after its date of issue (TR 95/18 at [9]). Some of the legislative provisions referenced in the ruling were subsequently re-written in the Income Tax Assessment Act 1997 (Cth). The provisions retained the same meaning when re-written. TR 95/18 relevantly provides that (summarising):

11.1. the receipt of an allowance does not automatically entitle a truck driver to a deduction (see [12])

11.2. a number of allowances commonly received by truck drivers (eg camping out, carrying salt, first-aid) are fully assessable and no corresponding deduction is allowable (see [14])

11.3. the Commissioner of Taxation publishes a Taxation Ruling annually that indicates amounts considered reasonable in relation to expenses including overtime meal expenses and domestic travel expenses (see [15])

11.4. if the amount of a claim for expenses incurred is no more than the reasonable amount, substantiation is not required - but if a deduction claimed is more than the reasonable amount, the whole claim must be substantiated, not just the excess over the reasonable amount (see [16])

11.5. a deduction is only allowable if an expense is actually incurred, meets the deductibility tests and satisfies the substantiation rules (see [21])

11.6. if the total claimed expenses are $300 or less, a truck driver can claim the amount without getting written evidence - but a record must still be kept of how the claim was calculated (see [34])

11.7. a deduction is not allowable if the substantiation requirements are not met ([35])

11.8. the general rule is that no deduction is allowed for work-related expenses unless written evidence, such as a receipt, is obtained - however, special substantiation rules apply to overtime meal allowance paid under an industrial award and a deduction is allowable without substantiation for expenses incurred, provided the claim does not exceed the amount considered reasonable by the Commissioner of Taxation (see [104])

11.9. if a deduction claimed is more than the reasonable amount, the whole claim must be substantiated, not just the excess over the reasonable amount (see [105] and [202])

11.10. receipts must be obtained to substantiate work-related accommodation expenses incurred by a truck driver even if a travel allowance is received (see [172])

11.11. a deduction is not allowable in relation to work expenses including a meal allowance expense and a travel allowance expense unless written evidence of the expense has been obtained and retained (see [203])

11.12. if a receipt can be obtained for an expense, it is not an expense 'otherwise too hard to substantiate' for the purposes of [208] of TR 95/18 (see [209])

11.13. the Commissioner has a limited discretion to allow relief from substantiation of a particular expense item but, in applying this relief, consideration is given to the nature and quality of the evidence available to substantiate the claim (see [213]).[37] (emphasis in the original)

1. He also stated:
   1. There were no significant changes to the ATO's relevant policies/rulings on reasonable expense claims by employee truck drivers in 2010. The Trucking Determinations were only released in 2010 and 2011 because the relevant 'reasonable amount' figures are updated every year, not because there were any significant changes to the ATO's underlying policies about nexus or substantiation. Those underlying policies have been in place since 1990.[38]
2. With respect to teachers, Mr Majoor referred to the applicable Taxation Ruling, TR 95/14 and went on to state:
   1. 'Motor vehicle and other transport expenses' are dealt with at [130]-[164] of TR 95/14. Those paragraphs relevantly provide that:

15.1. a deduction is not allowable for the cost of travel by an employee teacher between home and his or her normal work place as it is generally considered to be a private expense (see TR 95/14 at [132])

15.2. the fact travel is outside normal working hours or involves a second or subsequent trip does not change this principle (see TR 95/14 at [134]).

1. 'Telephone, mobile phone, pager, beeper and other telecommunications equipment expenses' are dealt with at [211]-[218] of TR 95/14. Those paragraphs relevantly provide that:

16.1. a deduction is allowable for the cost of telephone calls made by an employee teacher in the course of carrying out his or her duties (see TR 95/14 at [211])

16.2. work related calls may be identified from an itemised telephone account or, if such an account is not provided, a reasonable estimate may be given based on diary entries of calls made over a period of 1 month together with the relevant telephone accounts (see TR 95/14 at [212]).

1. 'Self-education expenses' are dealt with at [188]-[194] of TR 95/14. Those paragraphs relevantly provide that:

17.1. the 'nexus' requirement that only self-education expenses that are directly relevant to the taxpayer's current earning activities are deductable (see TR 95/14 at [188(a)])

17.2. the circumstances in which transport costs in connection with a course of education are deductable (see TR 95/14 at [190])

17.3. meals purchased by a taxpayer while attending a course at an educational institutional are not deductable under s 51(1) of the Act (now s.8-1 of the Income Tax Assessment Act 1997 (Cth)) except as part of travel expenses (see TR 95/14 at [191(b)])

17.4. the only expenses that fall within the definition of 'expenses of self-education' in s 82A of the Act that are deductable are those more than $250 - ie the first $250 is not an allowable deduction (ss TR 95/14 at [192]).

18.1. a deduction is only allowable (see [21]) if an expense is actually incurred, meets the deductibility texts and satisfies the substantiation rules in [35]-[36] of TR 95/14)

18.2. only total work related expense claims of $300 or less may be made without providing written evidence (except for certain car, travel allowance and meal allowance expenses) and, even then, a record must be kept of how the claim was calculated (see [35] of TR 95/14)

18.3. a deduction is not allowable if the substantiation requirements are not met (see [36] of TR 95/14).

1. TR 95/14 came into effect on 8 June 1995 but it expressly applies to years commencing both before and after its date of issue (see TR 95/14 at [10]). There were no significant changes to the ATO's policies/rulings on deductions claimed by teachers in 2010 and TR 95/14 is still the appropriate ruling for such claims.[39] (emphasis in original)
2. Toward the end of his statement, Mr Majoor stated:
   1. As explained above, none of the relevant policies / rulings referred to in this statement were significantly amended/altered in or around 2010. In fact, before 2010:

37.1. employee truck drivers were required to provide substantiation for any travel or meal allowance claims that exceeded the specified 'reasonable amount'

37.2. employee truck drivers were required to substantiate any 'incidental expenses' (ie unlike other taxpayers, they were not entitled to claim a 'reasonable amount' under Table 1 of the relevant rulings/determinations even before 2010)

37.3. teachers were required to show a 'nexus' between self-education expense claims and their current employment as well as meeting the relevant substantiation requirements for all car, telephone and self-education claims

37.4. all taxpayers were required to provide diary entries for 1 month to substantiate any claims for telephone expenses except where an itemised account was provided that identified any work-related calls.[40]

1. Ms Koudounis is currently employed by the ATO as a Tax Agents Compliance Manager, and has worked for the ATO since 1980. As regards nexus and substantiation of work-related expense claims, her evidence was consistent with that of Mr Majoor, and she said in her statement:
   1. I do not recall there being any significant changes in the ATO's policies about nexus and substantiation of work related expense claims in or about 2010. In fact, the ATO already required taxpayers to substantiate claimed deductions and establish a nexus between claimed deductions and employment before 2010.[41]

1. I have carefully considered the evidence directed to these issues, including the oral and written evidence of Mrs Burnett, Mr Majoor and Ms Koudounis.
2. Having done so, I have ultimately concluded that I accept and prefer the consistent evidence of Mr Majoor and Ms Koudounis as to the relevant rulings, determinations, policies, practices and procedures of the ATO during the relevant period. I therefore also accept that there was no significant change in the applicable rulings, determinations and policies of the ATO in or around 2010.
3. Whilst I accept that Mrs Burnett has or had a genuine belief/perception that such a change occurred, I am not satisfied that that perception was soundly based or accurate. Rather, I am satisfied that that perception arose in part from the fact that prior to and during the relevant period, Mrs Burnett had a flawed understanding of relevant tax law and ATO requirements in the area of WRE deductions, nexus and substantiation, including as they related to truck drivers, teachers and telephone expenses. On the evidence before me, I also consider that this flawed understanding contributed to her profile being different to that of other agents, and ultimately to the results of the 2010 and 2012 audits.
4. Whilst it is not necessary for me to reach a view on this question, I accept it is possible that Mrs Burnett's perception of the ATO becoming increasingly aggressive toward her was also due, in part, to the fact that, because she was submitting excessively high and unwarranted claims for deductions, from 2009 Mrs Burnett attracted increasing attention and scrutiny from the ATO.[42]
5. I will return to the implications of my findings for Mrs Burnett's fitness and properness to be a tax agent later in my Reasons.

1. In support of its contention that Mrs Burnett was not a fit and proper person to be registered as a tax agent, the Board relied primarily upon two categories of conduct engaged in by Mrs Burnett, which the Board contended called her character into question. The conduct relied upon by the Board can conveniently be grouped as follows:
   • (a) instances in which Mrs Burnett used the Tax Agent Portal to access records in circumstances where the Board says she was not lawfully authorised to do so; and
   • (b) instances where the Board says Mrs Burnett failed to deal with Ms Koudounis and another ATO employee, Ms Sarvos, in an appropriate manner, failed to cooperate with them, and made remarks to them which could fairly be described as insulting and/or harassing.
2. I propose to address the evidence relating to each of these categories of conduct in turn.

1. The evidence before me establishes that at the relevant time, during 2010, Mrs Burnett was acting for Ms Alison White, and was authorised to access and obtain Ms White's tax records.[43] At that time, Ms White was apparently in the throes of a property dispute following a separation and was having difficulty accessing information relating to the financial affairs of her ex de facto husband.
2. The evidence is that Mrs Burnett accordingly telephoned another accountant, Mr Neville Ortmann, who acted for Ms White's ex-husband, Mr Spithas, and asked him for certain financial documents about a chicken retailing business operated by Ms White and Mr Spithas.[44] Mr Ortmann's evidence at the hearing was that he explained to Mrs Burnett in this telephone call that the relevant business was only ever operated by Mr Spithas and his brother, and Ms White was never involved in any official capacity. He also advised her that he believed the documents Mrs Burnett was seeking had already been provided to Ms White's lawyer. Mr Ortmann also wrote an email to Mrs Burnett confirming that Ms White had no interest in the relevant partnership and that Mr Spithas had already provided the relevant documents to Ms White's lawyer.[45]
3. The evidence also establishes that on 29 June 2010 Mrs Burnett used the Tax Agent Portal to access records about the partnership. In order to do this she "added the client at the CAC level and the IT level and updated the postal address for both roles".[46] In other words, for the purposes of using the Tax Agent Portal, Mrs Burnett represented to the ATO that she was acting for the entity "WS & AN Spithas".[47] On 5 July 2010, Mrs Burnett then wrote a report for use in the Family Court proceedings involving Ms White and Mr Spithas, using information about the partnership obtained by accessing the Portal.[48]
4. The evidence also shows that on 9 September 2010, Mrs Burnett again used the Tax Agent Portal to access ATO records about the entity "Spithas Investments Pty Limited as Trustee for the William Spithas Family Trust", which apparently took over the business from the partnership. Again she "added the client at the CAC role level and updated the postal address".[49] In other words, she represented to the ATO for the purpose of using the Tax Agent Portal that she was acting for "the Trustee for William Spithas Family Trust". On 10 September 2010, Mrs Burnett also wrote a further report or an amended report for use in the Family Court proceedings involving Ms White and Mr Spithas, using information about the relevant company obtained from the Tax Agent Portal.[50] On 29 September 2010, Mrs Burnett also used the Tax Agent Portal to remove the company as a client "at the CAC role level".[51]
5. The evidence further shows that on 4 April 2011, Mrs Burnett again used the Tax Agent Portal to access ATO records about the company, again representing that she acted for the company for this purpose. She also then "removed the client at the CAC role level" on the same day. In other words, she represented to the ATO that she acted for the company in order to access the records, and then immediately updated the Portal information to indicate she was no longer acting for the company.[52]

1. When it was first put to her by the Board that she had used the Tax Agent Portal to access information without authority, Mrs Burnett strongly refuted the allegation. In a letter to the Board she stated:

I strongly rebut this. This is a scurrilous and outrageous claim by an accountant who is annoyed his client was found out.

My client was going through a divorce in which she was denied access to information she had a right to. She had helped establish the business, and had a financial interest in it. The husband and his accountant were claiming it was worth less than it really was. I accessed the portal and used the information supplied by my client i.e. ABN and TFN to determine the truth, which was then used in the divorce settlement. My client gave me written authority to do this. It is NOT possible to access information without the two numbers. Only the two related names were accessed.[53] (emphasis in original)

1. On 1 October 2013, the Board wrote a letter to Mrs Burnett attaching a draft submission to a Board Conduct Committee, which included the statement:

Mr Ortmann alleged that Mrs Burnett accessed his client's records via the Tax Agent Portal without his authorisation on 29 June 2010, 9 September 2010 and 4 April 2011. This is supported by information received by the ATO ... .[54]

1. Mrs Burnett responded to this letter, by a letter dated 16 October 2013 in which she relevantly stated:

I strongly object to any suggestion that I may have acted dishonestly or without integrity. All my dealings with clients and the ATO are of the highest calibre. ...

I strongly object to any suggestion that I may have acted in any way unlawfully, or not in the best interests of my clients.[55]

1. In her oral evidence to the Tribunal, Mrs Burnett essentially maintained the position outlined in her correspondence to the Board. When she was initially asked about her use of the Tax Agent Portal to access the relevant records, she made reference to the fact that she felt Ms White had a right to this information, to prove she had an interest in the business. When she was pressed as to her legal authority to access the information, she indicated that Ms White had a financial interest in the business and "that's the law" - the inference being that because Ms White was her client and Ms White claimed to have a financial interest in the business, Mrs Burnett was entitled to access the tax records of the business via the Tax Agent Portal.
2. In the course of cross-examination, Mrs Burnett confirmed that she had accessed these records deliberately, notwithstanding that she was not instructed to act for the relevant partnership, company or trust. She again asserted that Ms White had a financial interest in the company, although she conceded that Ms White was not a director or shareholder, stating that under family law, assets of a marriage are distributed. She confirmed that her only authority to access these records was that she was acting on Ms White's behalf. She maintained that Ms White had authorised her to access the records that she had accessed, and maintained that it was not wrong to use the Tax Agent Portal to access the data of the company and trust, even though she was not acting for them. She maintained that she had written authority to access these records, and relied upon the written authority to act given to her by Ms White. She maintained that Ms White was legally entitled to access the records.
3. Mrs Burnett further accepted that on 10 June 2010 she added "WS & AN Spithas" as her client on the ATO data base, and that she used the information she obtained on 29 June to prepare her report of 5 July 2010. She initially denied accessing the records again on 9 September and 29 September 2010, and 4 April 2011, and maintained that she had only prepared one report for Ms White. However, she later conceded that she may have accessed the portal again on 9 September 2010 to add the trustee as a current client, even though on that date the trustee was not her client. Mrs Burnett also accepted later in her evidence that it was likely that she had accessed the records again on 4 April 2011, and removed the relevant entity as a client on the same day, although she maintained that she was not acting illegally.
4. In his closing submissions on behalf of his wife, Mr Burnett accepted that the relevant records had been accessed by Mrs Burnett on the dates alleged by the Board and she had made the changes to the details on the data base alleged, purely for the purpose of facilitating access. He pointed out that she had not in fact made any other alterations to the ATO records relating to the entities. He also maintained that Mrs Burnett's actions were justified in the circumstances because of the need to obtain the relevant information for Ms White within a short time frame.

1. Also of relevance to this issue is the evidence of Ms White, who also gave oral evidence to the Tribunal. In the course of her evidence, Ms White was asked whether she had been aware that Mrs Burnett had used the Tax Agent Portal to add the relevant trustee as a client and had updated the applicable postal address in order to get the information Ms White needed. She indicated that she had not been aware of this and would have had concerns about it if she had been aware. When she was asked whether her general authorisation to Mrs Burnett to act for her extended to authorising Mrs Burnett to represent to the ATO that she also acted for the trust or the company, she replied "No, never." She further indicated that if her permission had been sought to change the details on the ATO database so as to indicate that Mrs Burnett acted for the company or the trust, she would not have given her permission.

1. On the evidence before me, I am satisfied that Mrs Burnett used the Tax Agent Portal to access the records of the Spithas partnership and trust on the occasions alleged by the Board and that she made the amendments to the database alleged by the Board in order to achieve that access. In particular, she changed the details on the Tax Agent Portal so as to indicate that she was acting for the partnership and the trust at the time she accessed their records.
2. I am further satisfied that Mrs Burnett did this in circumstances where she was fully aware that she was not acting for the partnership or the trust at the relevant time and, to that extent, the details she entered into the database were false. I am also satisfied that Mrs Burnett was not authorised to access records of the trust or the partnership, as she was not acting for either entity at the relevant time.
3. Mrs Burnett maintained in her evidence and submissions that she was justified in accessing these records on two bases:
   • (a) she was authorised to act for Ms White and Ms White had a financial stake in the business; and/or
   • (b) Ms White had a legitimate entitlement to this information, and therefore the "end justified the means" in so far as Ms White's need for the information justified Mrs Burnett accessing it without authority.
4. However, I reject both of these purported justifications for Mrs Burnett's unauthorised access of the records. As an accountant and tax agent, I consider that Mrs Burnett either was or should have been well aware of the limits of her authority to act for Ms White, and that this did not automatically extend to accessing the records of any entity she claimed to have an interest in. Further, I consider that Mrs Burnett either was or should have been aware that it was not appropriate for her to access tax records without lawful authority, regardless of whether she considered that the particular circumstances warranted this. Mrs Burnett either was or should have been aware that the ability to access tax records through the Tax Agent Portal is a privilege conferred on tax agents on the understanding that they will only access the records of their own clients. I consider that Mrs Burnett clearly abused this privilege by accessing records which she had no legal authority to access, effectively prioritising her desire to obtain the records for Ms White above her obligation to abide by the conditions associated with her access to the Tax Agent Portal, and her legal obligations as a tax agent.
5. It follows from my conclusions that Mrs Burnett either acted contrary to what she knew to be her legal obligations and the legal constraints upon her, or showed a troubling lack of understanding of the limits of her authority and the nature of her obligations as a tax agent. It was my impression from much of the evidence given by Mrs Burnett on this topic, as well as her responses to the Board, that Mrs Burnett places great weight upon her own judgement about what is warranted in particular circumstances, and is willing to act contrary to what she may see as unduly technical or restrictive legal obligations, where she regards this as justified. Needless to say, this is a concerning propensity in someone holding the trusted position of a tax agent.
6. In addition, I also gained the impression from much of Mrs Burnett's evidence on this topic, and her responses to the Board, that she did not appreciate the seriousness of what she had done in using the Tax Agent Portal to access tax records without authority. Her apparent inability to appreciate this is also a matter of serious concern, as it raises a clear possibility that she would engage in such conduct again.
7. Mrs Burnett's response to these allegations was essentially twofold. First, she questioned whether there was any real difficulty with what she had done, and secondly, she maintained that it was warranted in any event. As I have indicated, each of these responses causes me serious concern as to her fitness and properness to be a tax agent. The responses, both individually and taken together, suggest a lack of respect for the law, an inability to appreciate the legal obligations and other constraints operating on a tax agent, and a willingness to disregard rules or obligations which Mrs Burnett considers are not warranted or should not be followed for reasons which she considers justify departure from them. In other words, this conduct suggests that Mrs Burnett is willing to disregard the laws and rules which apply to her where she feels this is warranted.

1. With respect to the conduct grouped under this heading, the Board alleges that Mrs Burnett failed to cooperate with two ATO employees, Ms Koudounis and Ms Sarvos and made "inappropriate and racially discriminatory remarks that were perceived as shocking, insulting and/or harassing".[56]

1. There is no dispute that Ms Koudounis carried out a site visit to Mrs Burnett's practice on 2 March 2011, although Ms Koudounis and Mrs Burnett gave different accounts of some aspects of what occurred during that visit.
2. In her statement and her oral evidence, Ms Koudounis indicated that on arrival at Mrs Burnett's practice, Mrs Burnett advised her that she had not received a letter informing her of the particular clients whose files were to be reviewed. Ms Koudounis states that she then advised Mrs Burnett that she had a copy of the letter with her and they both checked the postal address, which was correct. Ms Koudounis then provided a copy of the letter to Mrs Burnett.
3. Ms Koudounis says she then proceeded to ask questions about the practice, clients and return preparation in accordance with the ATO interview checklist. She says that Mrs Burnett asked "Is this an inquisition?". Ms Koudounis says that she then attempted to explain the reasons for the questions Mrs Burnett was being asked, but Mrs Burnett was not forthcoming with information. Ms Koudounis says that at a later point in the discussion, she began to discuss with Mrs Burnett two cases which were referred to audit and showed Mrs Burnett the reasons for decision of each audit. Mrs Burnett apparently indicated that she did not agree with the decisions and stated "the ATO is wrong".[57]
4. Ms Koudounis' account of the balance of her visit was as follows:

● We commenced the discussion of working paper reviews of the clients selected. Iren (sic) Burnett did not have the working papers available and asked me to look for them in her filing cabinet. The filing systems were alphabetical and I retrieved the cases one at a time.

● As I was reviewing each file I questioned how claims were calculated and what evidence was sighted. When I pointed out that some of the expenses appear to be estimated as there are rounded figures and nexus is not clear, Irene Burnett became annoyed and only commented that the claims are correct. Therefore I wrote down the information available on the summary of workrelated expenses. The working papers did not have any evidence of any substantiation documents.

● Once all cases were reviewed I advised Irene Burnett that I would refer all cases to audit and depending on the audit results I would recommend a referral to the Tax Agents Board. Irene Burnett became angry and stated that she will "see me at the tribunal".

● I thanked her for her time and offered to shake her hand, she refused.[58]

1. Ms Koudounis has also indicated in her evidence that she had two telephone conversations with Mrs Burnett on 27 June 2012.[59] Ms Koudounis made a contemporaneous record of those telephone calls which stated:

Called Irene Burnett to discuss the compliance program for her practice for the 2011/12 income year returns.

I identified myself and advised I wanted to discuss our compliance activities commencing on 1/07/2012 Ms Burnett asked me my name again which I repeated and she said "I do not want a visit from anyone of Greek extraction" and then hung up.

I called a second time and stated that I did not want to make an appointment [sic] see her I just wanted to advise her of the audit program for her practice as she is still profiling high and previous audits indicate that there are issues with her return preparation. Ms Burnett stated "I do not want to talk to anyone of greek extraction, go away, you are a pain in the neck". I said thank you and hung up[60]

1. With respect to Ms Sarvos, the evidence before me contains a report that on 22 March 2012, Ms Sarvos, who is employed as an interpretative assistance case officer with the ATO in Melbourne, received a telephone call from Mrs Burnett. The record indicates that following this telephone conversation, Ms Sarvos approached her team leader to report that in the course of the conversation, Ms Sarvos had been subjected to "remarks of a racial nature and had been spoken to in an insulting and harassing manner".[61]
2. When Mrs Burnett was asked about these matters during cross-examination, she disputed several aspects of Ms Koudounis' account, stating that Ms Koudounis was "lying". She claimed that Ms Koudounis threatened to have her struck off, and following this she told Ms Koudounis to leave her premises. Mrs Burnett stated that Ms Koudounis' attitude was a "disgrace", that she had failed to supply Mrs Burnett with a list of clients and that Mrs Burnett "didn't trust what she was up to". She further indicated that she had suspicions about Ms Koudounis, in particular, because of her assumed Greek extraction. She explained that she understood that Ms White's ex de facto husband was Greek and she suspected that Mr Ortmann had contacted the ATO and "started a witch hunt" against her. The implication was that Ms Koudounis was making life difficult for her in retaliation for what she had done to assist Ms White, and the reason for this was the common Greek ethnicity/origin of Ms Koudounis and Ms White's de facto husband. As to the telephone conversations on 27 June 2012, Mrs Burnett accepted that she had said something to the effect that she did not want a visit from anyone of Greek extraction. She confirmed that her suspicion was that Ms White's de facto husband got Mr Ortmann to "use Greek contacts in the ATO".
3. When asked whether she was concerned that she may appear unprofessional, Mrs Burnett indicated that she thought her conduct was justified and she did not care what Ms Koudounis thought. Later in her cross-examination, Mrs Burnett conceded that she did recall saying "Is this an inquisition?", and that she may have said "The ATO is wrong". However, she maintained that she had asked Ms Koudounis to leave and that she left earlier than she had intended to. She said she did not know whether Ms Koudounis had finished her work or not. She said that Ms Koudounis' evidence that she was not asked to leave was "rubbish".
4. During the course of her evidence, Mrs Burnett also indicated that because she understood Mr Ortmann's wife was also Greek, she considered it was likely that Mr Ortmann had "hacked" her phone system. Mrs Burnett further acknowledged having sent a message to the ATO in the context of communications relating to a particular client stating:

instant removal of madalene sarvos - of greel (sic) extraction - to be removed from my clients (sic) file immediately and some one of australaian extraction to oversee my clients (sic) file.

immediate phone call required from ato by someone of australian (sic) background.[62]

She conceded that she had not been authorised by the relevant client to send that message to the ATO. She also said she did not believe that this aspect of her dealings with the ATO was likely to have a negative impact on any of her clients. Asked if she had behaved in an insulting and harassing manner, she responded with words to the effect that she was giving the ATO back "what they gave me" and that she had the "right to choose" who she dealt with. She indicated that her concern was that because Mr Ortmann had a Greek wife, he might have relationships with Greek people in the ATO and that might affect how they carried out their duties, and "I was under extreme stress". Later in her evidence she accepted that she had said she did not want to deal with anyone of "Greek extraction" because she was "paranoid".

1. Having carefully considered the evidence before me and both the oral evidence of Mrs Burnett and Ms Koudounis, as well as the manner in which that evidence was given, I have decided that to the extent there were any inconsistencies between them, I prefer the evidence of Ms Koudounis. In reaching that conclusion, I have taken into account the fact that over the course of her oral evidence, Mrs Burnett at times vehemently denied things which she later admitted had occurred or had been said. Whilst she did not necessarily knowingly give false or misleading evidence, much of her evidence was of an intemperate and ill-considered nature, and she did not give the impression of giving proper consideration to her answers to some questions before she gave them. Consequently, at times she gave very dogmatic answers to questions which required a more nuanced or detailed response. At times her demeanour reflected a person who did not consider they should be required to answer for their actions in the way in which she was being required to do. On a number of occasions she referred to the fact that she was an experienced tax agent who knew what they were doing and as such should not be asked to account for her actions/conduct.
2. In comparison, I found Ms Koudounis to be a measured and thoughtful witness who gave factual responses to the questions she was asked. In addition, her evidence was entirely consistent with the available contemporaneous records.
3. For completeness, I also accept that Mrs Burnett spoke to Ms Sarvos in the way which has been alleged, which I note is not disputed by Mrs Burnett in any event.
4. It therefore follows from my acceptance of Ms Koudounis' and Ms Sarvos' accounts of their dealings with Mrs Burnett that I also accept that Mrs Burnett failed to cooperate with Ms Koudounis during her site visit on 2 March 2011. Further, I do not consider on the evidence that there was any good reason for Mrs Burnett's failure to cooperate with Ms Koudounis during this visit.
5. I accept Ms Koudounis' evidence that she had forwarded a letter to Mrs Burnett prior to the visit which identified the files to be looked at, and that she provided another copy of this list at the outset of the visit. Even if she had not done so, I would not have regarded that failure as an acceptable explanation for the rude and unprofessional manner in which Mrs Burnett conducted herself during this site visit. Again, the high-handed, intemperate and unreasonable manner in which Mrs Burnett conducted herself on this occasion suggests a person who does not believe she should be made accountable for her actions, becomes aggressive when challenged or questioned, and is not capable of meeting the generally accepted standards of professional behaviour.
6. This in itself would be a serious matter of concern. In addition to that, however, I also accept that Mrs Burnett behaved in a racially discriminatory, offensive and insulting manner toward both Ms Koudounis and Ms Sarvos based on a belief she had about some connection between Mr Ortmann on the one hand, and Ms Koudounis and Ms Sarvos on the other, which had no foundation in reality.
7. The fact that a coincidence between Mr Ortmann's questioning of her use of the Tax Agent Portal on the one hand, and Ms Koudounis' and Ms Sarvos' communications with her on the other, caused Mrs Burnett to assume that a "witch hunt" was underway against her based on the common Greek extraction of Mr Ortmann's wife, Ms White's ex-husband, Ms Koudounis and Ms Sarvos, shows a propensity on Mrs Burnett's part to make assumptions and form beliefs which are completely at odds with reality, and proceed to conduct herself in a rude and unprofessional manner toward other people, based on an assumption that her own distorted perception is accurate. Needless to say, this is an alarming propensity in a person entrusted with the responsibilities of a tax agent.
8. Further, the fact that Mrs Burnett's wrong and entirely unfounded assumption was based on an assumed complicity based on ethnic origin gives a further basis for concern, and poses a risk that she would make such unfounded assumptions in future, and in circumstances where it affected her dealings with the ATO, and her professional dealings more generally. Unfortunately, Mrs Burnett's dealings with Ms Koudounis and Ms Sarvos showed an absence of the qualities of courtesy, mutual respect, restraint and sound judgement which would ordinarily be expected of a tax agent.

1. The respondent contended that Mrs Burnett's conduct did not support a finding that she appreciated the significance of her wrongdoing, regretted it and/or had rehabilitated herself to such an extent that "it is truly unlikely that there will be any lapse in the future of the standards that are required of her".[63] In support of that contention, the respondent pointed to Mrs Burnett's denials of any wrongdoing with respect to the following conduct:
   • (a) initiating amendments to income tax returns to reinstate certain disallowed amounts for three clients and making similar claims for four other clients in circumstances that the ATO did not consider to be appropriate;[64] and
   • (b) using the Tax Agent Portal to obtain information about the Spithas' entities to assist Ms White.
2. In addition, the respondent contended that Mrs Burnett had engaged in other conduct during the course of the application and the hearing before the Tribunal that was not consistent with genuine contrition on her part, including:
   • (a) Mrs Burnett failed to comply with the sole condition of the stay order granted by the Tribunal (that she not take on new clients) in circumstances where she could have sought leave from the Tribunal before agreeing to take on a new client[65];
   • (b) during her evidence Mrs Burnett:
     • (i) made very serious allegations of impropriety about Mr Ortmann to the effect that he fabricated emails, which she subsequently withdrew;
     • (ii) was unwilling to accept that her dealings with Ms Koudounis and Ms Sarvos were entirely inappropriate;
     • (iii) refused to accept a decision of Senior Member Dunne in Re Fox and Commissioner of Taxation [2013] AATA 471, to the effect that she had failed to exercise reasonable care;[66]
   • (c) some of Mrs Burnett's evidence was of a false and/or misleading nature, for example that she was authorised by Ms White to use the portal in the manner that she did, and that she did not say the words attributed to her by Ms Koudounis during the site visit on 2 March 2011; and
   • (d) Mrs Burnett expressly confirmed, during cross-examination, that she still did not think she had done anything wrong and was not sorry about anything she had done.
3. In light of these matters, the respondent submitted that "the Applicant still does not appreciate the seriousness of her actions and that she has not shown a proper amount of respect for the ATO, the Respondent or the Tribunal".[67]
4. It should be acknowledged that in her closing submissions, Mrs Burnett conceded that her allegations with respect to some sort of conspiracy based on the Greek ethnicity of Ms Koudounis and Ms Sarvos "would not seem correct"[68], and were "paranoid". However, she essentially maintained her position with respect to her interaction with Ms Koudounis on 2 March 2011.
5. Whilst she indicated she had made some changes in her practice in response to the concerns which had been raised[69], Mrs Burnett also maintained her position to the effect that the ATO's approach to enforcement had changed since 2009, and as to the appropriateness of the claims she had made on behalf of her clients who were audited with respect to work-related expenses.
6. Mrs Burnett also appeared to maintain that her use of the Tax Agent Portal was appropriate, with Mr Burnett stating on her behalf in his written closing submissions:

Her only crime has been to care & to try & help people such as Ms White & ..., as well as to help her clients get the tax refund they are entitled to."[70]

In his oral closing submissions, Mr Burnett also confirmed that Mrs Burnett considered her use of the Tax Agent Portal to be justified by her objective and the short timeframe she had to obtain the relevant information.

1. Having carefully considered Mrs Burnett's evidence and submissions, I have ultimately concluded that she has failed to show contrition, and/or to appreciate the seriousness of her conduct with respect to a number of instances of what I have found to be inappropriate or improper conduct or behaviour.
2. Perhaps most significantly, I accept the Board's contention that, on the evidence before me, even at the conclusion of the hearing, Mrs Burnett did not appreciate the seriousness of the conduct she engaged in when she represented to the ATO that she acted for the Spithas' entities, in order to access their tax information for the benefit of a third party. This was a serious abuse of her position of trust as a tax agent, and a breach of the conditions on which she was permitted to use the Tax Agent Portal.
3. Even if there had been nothing before me to suggest any other impropriety, this conduct alone would have raised a serious question as to Mrs Burnett's fitness and properness to practice as a tax agent, and that would have been the case even if Mrs Burnett had appreciated the seriousness of her conduct and sincerely regretted the conduct. However, as will be apparent from the aspects of her submissions I have referred to above, this is very far from being the case.
4. At the conclusion of the hearing, it was my understanding that Mrs Burnett maintained that her access of the Tax Agent Portal in circumstances where she was not authorised to access it, in order to obtain the tax details of a client she was not acting for, was entirely justified by her need to obtain information to assist Ms White and the timeframe in which she needed to obtain that information. Her position in that respect was not altered by the fact that Ms White herself expressed reservations as to the propriety of this and said she would not have authorised it.
5. As I have indicated above, the fact that Mrs Burnett engaged in this conduct in the first place suggests she is not a fit and proper person to be a tax agent. The fact that she does not appear to appreciate the extent to which her conduct was entirely inappropriate and an abuse of her position, merely confirms that she has an insufficient appreciation of the responsibilities and obligations of a tax agent, such that she is not fit to hold that position. In light of her lack of appreciation of the seriousness of her conduct in this regard, I can have no confidence that she would not engage in similar conduct in the future. As such, allowing her to continue to practice as a tax agent would pose an unacceptable risk to the community.
6. Whilst she ultimately accepted that her perception of a conspiracy involving Ms Koudounis and Ms Sarvos was "paranoid" and "not correct", I also accept the Board's contention that with respect to a number of the other matters I have canvassed above, Mrs Burnett's stance was one of defiance rather than contrition. Although she indicated that she had adjusted her practices so as to require clients to sign a document verifying the correctness of the deductions claimed, she appeared to maintain that she was not at fault with respect to any of the clients who had been audited, and that the results of the audits were largely explained by a change in the practices of the ATO.
7. As I have recounted above, in some instances Mrs Burnett responded to allegations of misconduct on her part by making serious and unfounded allegations in return, which she later withdrew or partly withdrew. She did not expressly acknowledge any wrongdoing or inappropriate behaviour on her part in her dealings with Ms Koudounis, Ms Sarvos or Mr Ortmann, and in some instances maintained a version of events which was starkly inconsistent with all of the other evidence or, at best, misleading.[71]
8. As with Mrs Burnett's denial of any wrongdoing with respect to the Tax Agent Portal, her lack of contrition and indeed lack of understanding as to what was problematic about this conduct means she is highly likely to engage in further conduct of this kind, if allowed to continue to practice as a tax agent. To be more specific, having regard to the stance she adopted with respect to the relevant issues, I consider that allowing Mrs Burnett to continue to practice as a tax agent would carry a risk that she would:
   • (a) engage in further rude, inappropriate and uncooperative behaviour with respect to ATO staff;
   • (b) make inappropriate and unfounded allegations in response to any criticism of her conduct;
   • (c) use the Tax Agent Portal in circumstances where she had no authority to do so; and
   • (d) prepare and submit returns for clients claiming WRE deductions in circumstances where the amounts claimed were not consistent with the amounts or types of expenses currently considered claimable by the ATO and/or in circumstances where similar claims had previously been disallowed by the ATO.
9. As I have indicated above, with respect to some of Mrs Burnett's conduct, the mere fact that she engaged in that conduct in and of itself is sufficient to call into question her fitness and properness to be a tax agent. However, when that conduct is combined with her clear lack of contrition and lack of understanding as to why her conduct has been the subject of criticism, her position is clearly untenable. Accordingly, Mrs Burnett's lack of contrition and lack of appreciation of the seriousness of her conduct serves to confirm that allowing her to continue to practice would pose an unacceptable risk to the community, and that she is not a fit and proper person to be registered as a tax agent.

1. In summary, I have concluded that based on the ultimate outcomes in the matters the subject of the 2010 and 2012 audits, together with the evidence before me as to the technical issues which arose from those audits, Mrs Burnett does not possess the level of competence in the handling of her clients' taxation affairs which would be necessary for her to be regarded as a "fit and proper" person to be a tax agent. In addition, the conduct discussed above, and in particular Mrs Burnett's unauthorised use of the Tax Agent Portal, together with her dealings with Ms Koudounis and Ms Sarvos, show her not to be a person of "good fame, integrity and character" such that she may confidently be entrusted with the taxation affairs of members of the community. I have also concluded that Mrs Burnett has shown little in the way of contrition or appreciation of the seriousness of her conduct and, accordingly, there is no basis for confidence that, if given the opportunity, she would not repeat the same types of conduct in the future, both with respect to the management of the taxation affairs of her clients, and in her dealings with the ATO.
2. I have accordingly concluded that Mrs Burnett is not an individual of "good fame, integrity and character" and is not a fit and proper person to be registered as a tax agent pursuant to ss 20-15 and 20-5 of the TASA. For abundant clarity, even if there had been no evidence before me calling into question Mrs Burnett's competence, I would have concluded that she was not a fit and proper person by reference to the other conduct canvassed above.
3. For these reasons, I have decided to affirm the decision under review, which had the effect of rejecting Mrs Burnett's application for renewal of her registration as a tax agent.
4. As there is a stay currently in force, I note that the effect of subs 43(5C)(c) of the AAT Act is that my decision will come into operation at the end of 28 days after the date of the decision or, if an application is filed with the Federal Court, upon determination of that application, unless the Court otherwise orders.

SUMMARY OF THE OUTCOME OF THE 2010 AUDIT[72]

Tax agent claimed meal expenses using commissioner's reasonable amount and advised taxpayer that there was no need to substantiate even when meal allowance that taxpayer received was not separate but included in his wages.

WRE claims reduced to nil as no nexus. D1 disallowed in full as taxpayer advised they are not travelling directly from one workplace to second workplace (travelling home first)

spoke to taxpayer 9/8/11 and asked if tax agent requested to see supporting documents regarding D4 claim of $2700 and D5 claim of $13,147. Taxpayer advised that tax agent did not ask to see evidence supporting claims. Taxpayer stated that all documents were lost/destroyed.

Taxpayer was asked if tax agent requested any supporting documents. Taxpayer said tax agent did not ask to see any documents.

Tax agent was contacted on 21/9 and asked why she forwarded documents for 2009 (airline tickets), which one was not in the taxpayers name and the other ticket was to Armenia (probably taxpayers homeland) when we are auditing 2010. She asked for a letter stating what docs are required. I said that an audit notice was sent on 1/7/2011 giving specific info re what docs required and reminder notice was sent 5/8/2011. I said that audit will now be finalised based on info we have. Tax agent said that ATO this year has gone ballistic and she knows we have 100 days to do audits and she will be objecting.

Taxpayer claimed work related education for a nursing degree while she was working as an aged carer-therefore disallowed as it is at a point too soon. Tax agent should have made more in depth enquiries re taxpayers work 2010 year.

Taxpayer claimed business investment deduction (50% tax break) and does not operate a business.

[3] The Tax Agent Portal is a secure website that is only available to registered tax agents and their employees. It provides online communication with the ATO as well as client account and registration information.

[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

[10] In the context of ss 251JA(1) and 251JC(1) of the Income Tax Assessment Act 1936 (repealed). However, the authorities are equally applicable to the terms of the TASA: Kolya v Tax Practitioners Board [2012] FCA 215 at [31]- [32].

[11] (1982) 61 FLR 1.

[13] [1990] FCA 379; (1990) 21 ATR 974.

[16] [2001] AATA 107.

[18] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.