Tax Agent Services (Transitional Provisions and Consequential
Amendments) Act 2009
No. 114, 2009
An Act to amend the Tax Agent Services Act 2009 and to
deal with consequential and transitional matters arising from the enactment of
that Act, and for related purposes
[Assented to 16 November 2009]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Tax
Agent Services (Transitional Provisions and Consequential Amendments) Act 2009.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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16 November 2009
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2. Schedule 1, Part 1
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Immediately after the commencement of Part 2 of the Tax
Agent Services Act 2009.
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1 March 2010
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3. Schedule 1, Part 2
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At the same time as Part 2 of the Tax Agent
Services Act 2009 commences.
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1 March 2010
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4. Schedule 2
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Immediately after the commencement of Part 2 of the Tax
Agent Services Act 2009.
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1 March 2010
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendments
Part 1—Consequential amendments
A New Tax System (Goods and Services
Tax) Act 1999
1 Section 195‑1 (definition of registered tax agent)
Repeal the definition.
Corporations Act 2001
2 Paragraph 766B(5)(c)
Omit “tax agent registered under Part VIIA of the Income
Tax Assessment Act 1936,”, substitute “registered tax agent or BAS agent
(within the meaning of the Tax Agent Services Act 2009),”.
Fringe Benefits Tax Assessment Act
1986
3 Part IX
Repeal the Part.
4 Subsection 136(1) (definition of registered tax agent)
Repeal the definition, substitute:
registered tax agent has the meaning given by
subsection 90‑1(1) of the Tax Agent Services Act 2009.
Income Tax Assessment Act 1936
5 Subsection 6(1) (definition of registered tax agent)
Repeal the definition.
6 Paragraph 16(4)(b)
Repeal the paragraph, substitute:
(b) any board, or member of a board,
performing a function or exercising a power under a taxation law, for the
purpose of performing that function or exercising that power;
7 Part VIIA
Repeal the Part.
Income Tax Assessment Act 1997
8 Section 214‑185
Repeal the section.
9 Subsection 995‑1(1) (paragraph (a) of the definition
of recognised tax adviser)
After “*registered
tax agent”, insert “or BAS agent”.
10 Subsection 995‑1(1) (definition of registered tax
agent)
Repeal the definition, substitute:
registered tax agent has the meaning given by
subsection 90‑1(1) of the Tax Agent Services Act 2009.
11 Subsection 995‑1(1)
Insert:
registered tax agent or BAS agent has the
same meaning as in the Tax Agent Services Act 2009.
12 Subsection 995‑1(1) (at the end of the definition of taxation
law)
Add:
; or (c) the Tax Agent Services Act 2009
or regulations made under that Act.
Income Tax (Transitional Provisions)
Act 1997
13 Section 214‑130
Repeal the section.
Taxation Administration Act 1953
14 Subsection 2(1)
Insert:
registered tax agent or BAS agent has the
same meaning as in the Tax Agent Services Act 2009.
15 After subsection 3B(1B)
Insert:
(1C) Subsection (1) does not apply in
relation to sections 3D and 3E, Part III and sections 15 and 15A
insofar as that Part and those sections apply in relation to the Tax Agent
Services Act 2009.
16 At the end of subsection 3C(1AB)
Add “or the Tax Agent Services Act 2009”.
17 Paragraph 8AAZLH(2A)(b)
After “registered tax agent”, insert “or BAS agent”.
18 At the end of Division 1 of Part III
Add:
8AC
Application of Part to the Tax Agent Services Act 2009
This Part applies in relation to the Tax
Agent Services Act 2009 as if references in this Part (other than paragraph
8C(1)(b) and sections 8HA, 8W, 8WC, 8ZE, 8ZG and 8ZH) to the Commissioner,
or an office of the Commissioner, were references to the Tax Practitioners
Board established by the Tax Agent Services Act 2009.
19 Subsection 8J(2A)
After “registered tax agent”, insert “or BAS agent”.
20 After subsection 15(2)
Insert:
(3) This section applies in relation to the Tax
Agent Services Act 2009 as if:
(a) references in this section to the
Commissioner were references to the Tax Practitioners Board (within the meaning
of that Act); and
(b) references in this section to a
Second Commissioner or to a Deputy Commissioner were omitted.
21 At the end of section 15A
Add:
(12) This section applies in relation to the Tax
Agent Services Act 2009 as if references in this section to the
Commissioner were references to the Chair of the Tax Practitioners Board
(within the meaning of that Act).
22 Subsection 255‑1(2) in Schedule 1
After “Division 290”, insert “of this Schedule or Part 5
of the Tax Agent Services Act 2009”.
23 After subsection 284‑75(1) in Schedule 1
Insert:
(1A) However, you are not liable to an
administrative penalty under subsection (1) if:
(a) you engage a *registered tax
agent or BAS agent; and
(b) you give the registered tax agent
or BAS agent all relevant taxation information; and
(c) the registered tax agent or BAS
agent makes the statement; and
(d) the statement results in a *shortfall amount;
and
(e) the shortfall amount did not
result from:
(i) intentional disregard
by the registered tax agent or BAS agent of a *taxation law; or
(ii) recklessness by the
agent as to the operation of a taxation law.
(1B) If you wish to rely on subsection (1A),
you bear an evidential burden in relation to paragraph (1A)(b).
24 After subsection 286‑75(1) in Schedule 1
Insert:
(1A) However, you are not liable to an
administrative penalty under subsection (1) if:
(a) you engage a *registered tax
agent or BAS agent; and
(b) you give the registered tax agent
or BAS agent all relevant taxation information to enable the agent to give a
return, notice, statement or other document to the Commissioner in the *approved form by a
particular day; and
(c) the registered tax agent or BAS
agent does not give the return, notice, statement or other document to the
Commissioner in the approved form by that day; and
(d) the failure to give the return,
notice, statement or other document to the Commissioner did not result from:
(i) intentional disregard
by the registered tax agent or BAS agent of a *taxation law; or
(ii) recklessness by the
agent as to the operation of a taxation law.
(1B) If you wish to rely on subsection (1A),
you bear an evidential burden in relation to paragraph (1A)(b).
25 Section 298‑80
Repeal the section, substitute:
298‑80
Application of Subdivision
This Subdivision applies for the
purposes of the following provisions (the civil penalty provisions):
(a) Division 290 of this Schedule
(civil penalties for the promotion and implementation of schemes);
(b) Part 5 of the Tax Agent
Services Act 2009 (civil penalties for providing tax agent services while
unregistered and for certain conduct when providing tax agent services).
26 Application provision
(1) The amendment made by item 23 applies in
relation to statements given on or after the commencement of the item.
(2) The amendment made by item 24 applies in
relation to a return, notice, statement or other document required to be given
on or after the commencement of the item.
Part 2—Other amendments
Tax Agent Services Act 2009
27 Paragraph 20‑5(4)(a)
Omit “item 12”, substitute “item 7”.
28 Subparagraphs 50‑30(1)(c)(iii) and (2)(c)(iii)
Omit “or control”, substitute “and control”.
29 Subsection 70‑40(1)
Omit “if the Board is satisfied that the information is relevant
to”, substitute “for the purposes of”.
30 After paragraph 70‑40(1)(a)
Insert:
(aa) establishing whether a civil
penalty provision of a *taxation law has been, or is being, contravened; or
Schedule 2—Transitional provisions
Part 1—Preliminary
1 Definitions
(1) In this Schedule:
Board means the Tax Practitioners Board established
under section 60‑5 of the new law.
commencement means the commencement of Part 1,
Schedule 1 to this Act.
new law means the Tax Agent Services Act 2009.
old law means Part VIIA of the Income Tax
Assessment Act 1936 as in force immediately before commencement.
(2) An expression used in this Schedule that is also
used in the new law has the same meaning in this Schedule as it has in the new
law.
(3) Subject to subitem (2), an expression used in
this Schedule that is also used in the Income Tax Assessment Act 1997 has
the same meaning in this Schedule as it has in that Act.
Part 2—Continuation of existing registrations etc.
2 Registration of a tax agent continues in force
(1) If an entity was, immediately before commencement, a
registered tax agent within the meaning of the old law, the entity is taken to
be a registered tax agent within the meaning of the new law for the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending on the day on which:
(i) the entity’s
registration would have expired under the old law but for its repeal by
Schedule 1 to this Act; or
(ii) if item 17 of
this Schedule applies and the Board decides to cancel the entity’s
registration—the entity’s registration is cancelled under the old law despite
its repeal by Schedule 1 to this Act; or
(iii) the entity’s
registration is terminated under Subdivision 30‑B or 40‑A of the new law;
whichever occurs first.
Note: A registered tax agent within the meaning of the
new law is registered under section 20‑25 of the new law.
(2) If an entity was, immediately before commencement,
taken not to be a registered tax agent within the meaning of the old law
because of subsection 251K(6) of the old law (which relates to suspension), the
entity is taken to have been suspended under section 30‑25 of the new law
for the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending on the day on which the
suspension would have ended under the old law but for its repeal by Schedule 1
to this Act.
(3) If subitem (2) applies in relation to an
entity, immediately after the period of suspension ends, the entity is taken to
be a registered tax agent within the meaning of the new law for the period:
(a) beginning on the day immediately
after the day on which the suspension ends; and
(b) ending on the day on which:
(i) the entity’s
registration would have expired under the old law but for its repeal by
Schedule 1 to this Act; or
(ii) if item 17 of
this Schedule applies and the Board decides to cancel the entity’s
registration—the entity’s registration is cancelled under the old law despite
its repeal by Schedule 1 to this Act; or
(iii) the entity’s
registration is terminated under Subdivision 30‑B or 40‑A of the new law;
whichever occurs first.
Note: A registered tax agent within the meaning of
the new law is registered under section 20‑25 of the new law.
3 Special rule relating to the registration of nominees of
tax agents
If a person was, immediately before commencement, registered as a
nominee of a tax agent under the old law, the person is taken to be a
registered tax agent within the meaning of the new law for the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending on the day on which:
(i) the person’s
registration as a nominee would have ceased under paragraph 251KD(2)(g) of the
old law but for its repeal by Schedule 1 to this Act because the
registration of the tax agent ceases to be in force under the old law by virtue
of subparagraph 2(1)(b)(i) of this Schedule; or
(ii) if item 17 of
this Schedule applies and the Board decides to cancel the person’s
registration—the person’s registration is cancelled under the old law despite
its repeal by Schedule 1 to this Act; or
(iii) the person’s
registration as a registered tax agent is terminated under Subdivision 30‑B
or 40‑A of the new law;
whichever occurs first.
Note 1: A registered tax agent within the meaning of the
new law is registered under section 20‑25 of the new law.
Note 2: Subparagraph (b)(i)—the registration of the
tax agent (of whom the person is the nominee) will continue because of item 2
of this Schedule.
4 Special rule relating to the provision of tax agent
services by certain entities
(1) If:
(a) immediately before commencement, an
entity was providing a service that is a tax agent service (other than a BAS
service within the meaning of the new law) but was not required to be
registered as a tax agent under the old law; and
(b) during the 3 month period beginning
immediately after commencement, the entity notifies the Board that the entity
satisfies paragraph (a);
the entity is taken to be a registered tax agent within the
meaning of the new law for the 2 year period beginning immediately after
commencement.
Note 1: A registered tax agent within the meaning of the
new law is registered under section 20‑25 of the new law.
Note 2: Paragraph (b)—for the form of the notification,
see item 25 of this Schedule.
(2) To avoid doubt, if an entity is taken to be a registered
tax agent under subitem (1), the Board may, in accordance with the new
law, do either or both of the following:
(a) impose conditions to which the entity’s
registration is subject;
(b) require the entity to maintain
professional indemnity insurance;
as if the entity had applied for registration and the Board had
decided to grant the application.
5 Special rules relating to the provision of BAS services by
certain persons and entities
(1) If:
(a) immediately before commencement, a
person:
(i) was a person referred
to in paragraph 251L(6)(a), (b) or (c) of the old law; and
(ii) was providing a BAS
service within the meaning of subsection 251L(7) of the old law; and
(b) during the 6 month period
beginning immediately after commencement, the person notifies the Board that he
or she satisfies paragraph (a) of this subitem;
the person is taken to be a registered BAS agent within the
meaning of the new law for the 2 year period beginning immediately after
commencement.
Note 1: A registered BAS agent is registered under
section 20‑25 of the new law.
Note 2: Paragraph (b)—for the form of the notification,
see item 25 of this Schedule.
(2) If:
(a) an entity is not a person
mentioned in subitem (1); and
(b) immediately before commencement,
the entity was providing a BAS service within the meaning of the new law (other
than a BAS service within the meaning of subsection 251L(7) of the old law);
and
(c) during the 6 month period
beginning immediately after commencement, the entity notifies the Board that the
entity satisfies paragraphs (a) and (b);
the entity is taken to be a registered BAS agent within the
meaning of the new law for the 2 year period beginning immediately after
commencement.
Note 1: A registered BAS agent is registered under
section 20‑25 of the new law.
Note 2: Paragraph (c)—for the form of the notification,
see item 25 of this Schedule.
(3) To avoid doubt, if a person is taken to be a
registered BAS agent under subitem (1), the Board may, in accordance with
the new law, do either or both of the following:
(a) impose conditions to which the person’s
registration is subject;
(b) require the person to maintain
professional indemnity insurance;
as if the person had applied for registration and the Board had
decided to grant the application.
(4) To avoid doubt, if an entity is taken to be a
registered BAS agent under subitem (2), the Board may, in accordance with
the new law, do either or both of the following:
(a) impose conditions to which the
entity’s registration is subject;
(b) require the entity to maintain
professional indemnity insurance;
as if the entity had applied for registration and the Board had
decided to grant the application.
Part 3—Applications for registration or re‑registration
Division 1—Pending applications
6 Pending applications for registration—tax agents
(1) If:
(a) an entity has applied to a Tax
Agents’ Board for registration under section 251J of the old law; and
(b) the Tax Agents’ Board has not
decided the application before commencement;
then:
(c) the Board must decide the
application in accordance with section 251JA of the old law within 6
months after commencement; and
(d) if the Board decides to grant the
application—the Board must:
(i) register the entity as
a registered tax agent under section 20‑25 of the new law; and
(ii) notify the entity of
its decision in accordance with section 20‑30 of the new law; and
(e) if the Board decides to reject the
application—the Board must notify the entity of its decision in accordance with
subsection 251JA(3) and section 251QB of the old law.
(2) The Board is taken to have rejected the application
if it has not made its decision within 6 months after commencement.
(3) To avoid doubt, if the Board decides to grant the
application, the Board may, in accordance with subsection 20‑30(3) of the new
law, require the entity to maintain professional indemnity insurance.
7 Pending applications for re‑registration—tax agents
(1) If:
(a) an entity has applied to a Tax
Agents’ Board for re‑registration under section 251JB of the old law; and
(b) the Tax Agents’ Board has not decided
the application before commencement;
then:
(c) the Board must decide the
application in accordance with section 251JC of the old law within 6
months after commencement; and
(d) if the Board decides to grant the
application—the Board must:
(i) register the entity as
a registered tax agent under section 20‑25 of the new law; and
(ii) notify the entity of
its decision in accordance with section 20‑30 of the new law; and
(e) if the Board decides to reject the
application—the Board must notify the entity of its decision in accordance with
subsection 251JC(3) and section 251QB of the old law.
(2) The Board is taken to have rejected the application
if it has not made its decision within 6 months after commencement.
(3) To avoid doubt, if the Board decides to grant the
application, the Board may, in accordance with subsection 20‑30(3) of the new
law, require the entity to maintain professional indemnity insurance.
(4) The entity is taken to be a registered tax agent for
the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending:
(i) on the day on which
the Board makes its decision; or
(ii) on the day that occurs
6 months after commencement;
whichever occurs first.
(5) If:
(a) an entity has requested a Tax
Agents’ Board to allow, under paragraph 251JB(4)(b) of the old law, an
application for re‑registration to be made at a later time but before the day
on which the entity’s registration would have ended under the old law but for
its repeal by Schedule 1 to this Act; and
(b) the Tax Agents’ Board has not made
a decision before commencement;
then:
(c) the Board must make a decision in
accordance with section 251JB of the old law; and
(d) if the Board decides to allow the
request:
(i) the entity may apply
for re‑registration within the time decided by the Board; and
(ii) for the purposes of paragraph (1)(a)
of this item, the entity is taken to have applied to a Tax Agents’ Board for re‑registration
under section 251JB of the old law; and
(e) if the Board decides to refuse the
request—the Board must notify the entity in accordance with subsection 251JB(5)
and section 251QB of the old law.
8 Pending applications for registration—nominees
(1) If:
(a) an entity has applied to a Tax
Agents’ Board for registration of a nominee under section 251KB of the old
law; and
(b) the Tax Agents’ Board has not
decided the application before commencement;
then:
(c) the Board must decide the
application in accordance with section 251KC of the old law within 6
months after commencement; and
(d) if the Board decides to grant the
application—the Board must:
(i) register the nominee
as a registered tax agent under section 20‑25 of the new law; and
(ii) notify the entity and
the nominee of its decision in accordance with section 20‑30 of the new
law; and
(e) if the Board decides to reject the
application—the Board must notify the entity and the nominee of its decision in
accordance with subsection 251KC(3) and section 251QB of the old law.
(2) The Board is taken to have rejected the application
if it has not made its decision within 6 months after commencement.
(3) To avoid doubt, if the Board decides to grant the
application, the Board may, in accordance with subsection 20‑30(3) of the new
law, require the nominee to maintain professional indemnity insurance.
9 Pending applications for re‑registration—nominees
(1) If:
(a) an entity has applied to a Tax
Agents’ Board for re‑registration of a nominee under section 251KB of the
old law; and
(b) the Tax Agents’ Board has not
decided the application before commencement;
then:
(c) the Board must decide the
application in accordance with section 251KC of the old law within 6
months after commencement; and
(d) if the Board decides to grant the
application—the Board must:
(i) register the nominee
as a registered tax agent under section 20‑25 of the new law; and
(ii) notify the entity and
the nominee of its decision in accordance with section 20‑30 of the new
law; and
(e) if the Board decides to reject the
application—the Board must notify the entity and the nominee of its decision in
accordance with subsection 251KC(3) and section 251QB of the old law.
(2) The Board is taken to have rejected the application
if it has not made its decision within 6 months after commencement.
(3) To avoid doubt, if the Board decides to grant the
application, the Board may, in accordance with subsection 20‑30(3) of the new
law, require the nominee to maintain professional indemnity insurance.
(4) The nominee is taken to be a registered tax agent
for the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending:
(i) on the day on which
the Board makes its decision; or
(ii) on the day that occurs
6 months after commencement;
whichever occurs first.
(5) If:
(a) an entity has requested a Tax
Agents’ Board to allow, under paragraph 251KB(4)(b) of the old law, an
application for re‑registration of a nominee to be made at a later time but
before the day on which the nominee’s registration would have ended under the
old law but for its repeal by Schedule 1 to this Act; and
(b) the Tax Agents’ Board has not made
a decision before commencement;
then:
(c) the Board must make a decision in
accordance with section 251KB of the old law; and
(d) if the Board decides to allow the
request:
(i) the entity may apply
for re‑registration within the time decided by the Board; and
(ii) for the purposes of paragraph (1)(a)
of this item, the entity is taken to have applied to a Tax Agents’ Board for re‑registration
under section 251KB of the old law; and
(e) if the Board decides to refuse the
request—the Board must notify the entity and the nominee in accordance with
subsection 251KB(5) and section 251QB of the old law.
10 Pending applications for registration—successor tax
agents
(1) If:
(a) the registration of a partnership
has been terminated because of section 251JD of the old law; and
(b) a person has applied to a Tax
Agents’ Board in accordance with subsection 251JE(1) of the old law; and
(c) the Tax Agents’ Board has not
registered the person under section 251JF of the old law before commencement;
then, despite section 251JD of the old law, the
partnership’s registration is taken not to have been terminated at the time of
the change in the constitution of the partnership.
(2) If:
(a) the registration of a partnership
(the original partnership) has been terminated because of section 251JD
of the old law; and
(b) a new partnership has applied to a
Tax Agents’ Board in accordance with subsection 251JE(2) of the old law; and
(c) the Tax Agents’ Board has not
registered the new partnership under section 251JF of the old law before commencement;
then, despite section 251JD of the old law, the original
partnership’s registration is taken not to have been terminated at the time of
the change in the constitution of the partnership.
(3) If:
(a) a Tax Agents’ Board received a
document from an entity purporting to be an application made in accordance with
section 251JE of the old law; and
(b) the Tax Agents’ Board notified the
entity in accordance with subsection 251JE(8) of the old law that the Tax
Agents’ Board was of the opinion that the document was not an application made
in accordance with section 251JE of the old law; and
(c) at commencement, the 7 day period
mentioned in subsection 251JE(9) of the old law has not expired; and
(d) the entity has not made an
application under section 251JE of the old law, as allowed by subsection
251JE(9) of the old law;
then:
(e) the entity may, under subsection
251JE(9) of the old law, apply in accordance with section 251JE of the old
law within 7 days after commencement; and
(f) if the Board is of the opinion
that the entity has applied in accordance with section 251JE of the old
law—the Board must:
(i) register the entity as
a registered tax agent under section 20‑25 of the new law; and
(ii) notify the entity of
its decision in accordance with section 20‑30 of the new law.
(4) To avoid doubt, if the Board decides to grant the
application, the Board may, in accordance with subsection 20‑30(3) of the new
law, require the entity to maintain professional indemnity insurance.
11 Pending applications—refund of lodgment fees
If:
(a) an application made under section 251J,
251JB or 251KB of the old law is covered by this Division; and
(b) the application is withdrawn; and
(c) the application is neither granted
nor refused by the Board before it is withdrawn;
the Commissioner must refund the lodgment fee paid in respect of
the application under section 251KF of the old law, despite its repeal by
Schedule 1 to this Act.
Division 2—Applications not
made, but time period for making applications not expired
12 Applications for registration not made—successor tax
agents
(1) If:
(a) the registration of a partnership
has been terminated because of section 251JD of the old law; and
(b) at commencement:
(i) a person had not
applied to a Tax Agents’ Board in accordance with subsection 251JE(1) of the
old law; but
(ii) the 30 day period
within which an application had to be made (as mentioned in subsection 251JE(4)
of the old law) had not expired;
then, the person may apply to the Board in accordance with
subsection 251JE(1) of the old law, despite its repeal by Schedule 1 of
this Act, within the 30 day period.
(2) If the person makes an application mentioned in subitem (1),
then despite section 251JD of the old law, the partnership’s registration
is taken not to have been terminated at the time of the change in the
constitution of the partnership.
(3) If:
(a) the registration of a partnership
(the original partnership) has been terminated because of section 251JD
of the old law; and
(b) at commencement:
(i) a new partnership had
not applied to a Tax Agents’ Board in accordance with subsection 251JE(2) of
the old law; but
(ii) the 30 day period
within which an application had to be made (as mentioned in subsection 251JE(4)
of the old law) had not expired;
then, the new partnership may apply to the Board in accordance
with subsection 251JE(2) of the old law, despite its repeal by Schedule 1
of this Act, within the 30 day period.
(4) If the new partnership makes an application
mentioned in subitem (3), then despite section 251JD of the old law,
the original partnership’s registration is taken not to have been terminated at
the time of the change in the constitution of the partnership.
Division 3—New applications
13 Special rule for applications for registration as a
registered tax agent
(1) If:
(a) an entity applies for registration
as a registered tax agent under section 20‑20 of the new law before the
end of the 6 month period beginning immediately after commencement; and
(b) the entity would be eligible for
registration but for the operation of:
(i) paragraph 20‑5(1)(b)
of the new law (which requires the Board to be satisfied of requirements
prescribed by regulations, including requirements in relation to qualifications
and experience in respect of registration as a registered tax agent); or
(ii) paragraph 20‑5(2)(c)
or (3)(d); and
(c) immediately before commencement,
the entity was providing a tax agent service within a particular area of the
taxation laws; and
(d) the Board is satisfied that the
entity had been providing that tax agent service to a competent standard for a
reasonable period before making the application;
then, despite paragraph 20‑5(1)(b), (2)(c) or (3)(d) of the new
law, the entity is eligible for registration.
(2) The entity is taken to be a registered tax agent
within the meaning of the new law for the period:
(a) beginning on the day on which this
Schedule commences; and
(b) ending immediately before the day
on which the Board makes a decision under section 20‑25 of the new law.
14 Special rule for applications for registration as a
registered BAS agent
(1) If:
(a) an entity applies for registration
as a registered BAS agent under section 20‑20 of the new law before the
end of the 3 year period beginning immediately after commencement; and
(b) the entity would be eligible for
registration but for the operation of:
(i) paragraph 20‑5(1)(b)
of the new law (which requires the Board to be satisfied of requirements
prescribed by regulations, including requirements in relation to qualifications
and experience in respect of registration as a registered BAS agent); or
(ii) paragraph 20‑5(2)(c)
or (3)(d); and
(c) the Board is satisfied that the entity
had been providing BAS services to a competent standard for a reasonable period
before making the application;
then, despite paragraph 20‑5(1)(b), (2)(c) or (3)(d) of the new
law, the entity is eligible for registration.
(2) If:
(a) an entity is or has been taken to
be a registered BAS agent under item 5 of this Schedule; and
(b) the entity is eligible for
registration under subitem (1) of this item;
then, despite subsection 20‑25(4) of the new law, the period that
the Board may determine under that subsection must be at least 12 months.
Part 4—References to, and things done by, or in relation to, a
Tax Agents’ Board
15 Things done by, or in relation to, a Tax Agents’ Board
(1) If a thing was done by, or in relation to, a Tax
Agents’ Board under the old law, then the thing is taken, for the purposes of
the operation of any law after commencement, to have been done by, or in
relation to, the Board.
(2) The Minister may, by writing, determine that subitem (1)
does not apply in relation to a specified thing done by, or in relation to, a
Tax Agents’ Board.
(3) To avoid doubt, doing a thing includes making an
instrument.
(4) A determination under subitem (2) is not a
legislative instrument.
16 References in instruments
(1) If:
(a) an instrument is in force
immediately before commencement; and
(b) the instrument contains a
reference to a Tax Agents’ Board;
then, the instrument has effect after commencement as if the
reference to the Tax Agents’ Board were a reference to the Board.
(2) The Minister may, by writing, determine that subitem (1)
does not apply in relation to a specified reference.
(3) A determination made under subitem (2) is not a
legislative instrument.
17 Continuation of inquiries by a Tax Agents’ Board
(1) If, before commencement, a Tax Agents’ Board had
given an entity a show cause notice, then:
(a) within 60 days after commencement,
the Board must decide whether to investigate the entity; and
(b) if the Board decides to
investigate the entity—the Board must:
(i) notify the entity in
accordance with section 60‑95 of the new law; and
(ii) carry out its
investigation in accordance with the process required or allowed by Subdivision 60‑E
of the new law as if the Board were investigating conduct that may breach the Tax
Agent Services Act 2009; and
(iii) take whatever action
in relation to the entity allowed by the old law, despite its repeal by
Schedule 1 to this Act, that the Board considers appropriate; and
(c) if the Board decides not to
investigate the entity—the Board must, within 30 days of its decision, notify
the entity, in writing, that no further action will be taken in relation to the
show cause notice.
(2) If a decision is not made within 60 days after commencement,
the Board is taken to have decided not to investigate the entity.
(3) If, as allowed by subparagraph (1)(b)(iii), the
Board suspends an entity, the entity is taken not be a registered tax agent
within the meaning of the new law while the entity is suspended, except for the
purposes of the following Parts of the new law:
(a) Part 2 (Registration);
(b) Part 3 (The Code of
Professional Conduct);
(c) Part 4 (Termination of
registration).
(4) If:
(a) a Tax Agents’ Board required a
person to provide evidence, information or any document; and
(b) the evidence, information or
document was not provided to the Tax Agents’ Board before commencement;
then, the evidence, information or document must be provided to
the Board.
(5) In this item:
show cause notice means a written notice to an entity
that:
(a) sets out the grounds on which a
Tax Agents’ Board is giving the notice; and
(b) invites the entity to respond to
the Tax Agents’ Board, in writing, addressing the grounds on which the Tax
Agents’ Board has given the notice; and
(c) states the period within which the
entity must give the written response to the Tax Agents’ Board.
Part 5—Review of decisions
18 Rights of review of certain decisions
(1) Despite the repeal of section 251QA of the old
law by Schedule 1 to this Act, an application may be made to the
Administrative Appeals Tribunal under that section for review of any of the
following decisions:
(a) a decision by a Tax Agents’ Board
made before commencement under a provision of the old law if, at commencement,
the period for making an application for review has not ended;
(b) a decision by the Board to reject
an application for registration decided in accordance with section 251JA
of the old law under paragraph 6(1)(c) of this Schedule;
(c) a decision by the Board to reject
an application for re‑registration decided in accordance with section 251JC
of the old law under paragraph 7(1)(c) of this Schedule;
(d) a decision by the Board to refuse
a request to allow an application for re‑registration to be made at a later
time in accordance with section 251JB of the old law under paragraph
7(5)(c) of this Schedule;
(e) a decision by the Board to reject
an application for registration decided in accordance with section 251KC
of the old law under paragraph 8(1)(c) of this Schedule;
(f) a decision by the Board to reject
an application for re‑registration decided in accordance with section 251KC
of the old law under paragraph 9(1)(c) of this Schedule;
(g) a decision by the Board to refuse
a request to allow an application for re‑registration to be made at a later
time in accordance with section 251KB of the old law under paragraph
9(5)(c) of this Schedule;
(h) a decision by the Board to suspend
or cancel the registration of an entity after investigating the entity in
accordance with the new law as referred to in item 17 of this Schedule.
(2) To avoid doubt, an application may be made to the
Administrative Appeals Tribunal under section 70‑10 of the new law for
review of any of the following decisions of the Board:
(a) a decision under section 20‑25
of the new law, as applied by one of the following provisions of this Schedule,
to specify a condition to which registration is subject:
(i) paragraph 4(2)(a);
(ii) paragraph 5(3)(a);
(iii) paragraph 5(4)(a);
(iv) subparagraph
6(1)(d)(i);
(v) subparagraph
7(1)(d)(i);
(vi) subparagraph
8(1)(d)(i);
(vii) subparagraph
9(1)(d)(i);
(viii) subparagraph
10(3)(f)(i);
(b) a decision under section 20‑30
of the new law, as applied by one of the following provisions of this Schedule,
to require professional indemnity insurance to be maintained:
(i) paragraph 4(2)(b);
(ii) paragraph 5(3)(b);
(iii) paragraph 5(4)(b);
(iv) subparagraph
6(1)(d)(ii);
(v) subparagraph
7(1)(d)(ii);
(vi) subparagraph
8(1)(d)(ii);
(vii) subparagraph
9(1)(d)(ii);
(viii) subparagraph
10(3)(f)(ii);
(c) a decision under subsection 60‑125(4)
of the new law, as applied by subparagraph 17(1)(b)(ii) of this Schedule, to
extend the period of time within which an investigation is to be completed.
Part 6—Legal proceedings
19 Substitution of Board as a party to pending proceedings
If any proceedings to which a Tax Agents’ Board
was a party were pending in any court or tribunal immediately before commencement,
the Board is substituted for the Tax Agents’ Board, after commencement, as a
party to the proceedings.
20 Legal proceedings by taxpayers to recover fines etc.
(1) If:
(a) a taxpayer is or becomes liable to
pay a fine or other penalty, additional tax, shortfall interest charge or the
general interest charge under a provision of:
(i) the Income Tax
Assessment Act 1936; or
(ii) the Income Tax
Assessment Act 1997; or
(iii) Part IVC of the Taxation
Administration Act 1953, so far as that Part relates to the Income Tax
Assessment Act 1936, the Income Tax Assessment Act 1997 or Schedule 1
to the Taxation Administration Act 1953; or
(iv) Schedule 1 to the Taxation
Administration Act 1953; and
(b) a registered tax agent (within the
meaning of the old law) or a person exempted under section 251L of the old
law would have been liable to pay to the taxpayer the amount of that fine or
other penalty, additional tax, shortfall interest charge or general interest
charge under section 251M of the old law, but for its repeal by Schedule 1
to this Act;
then, the taxpayer may, in accordance with section 251M of
the old law, sue for and recover that amount as if that section had not been
repealed by Schedule 1 to this Act.
(2) If:
(a) an employer (within the meaning of
the Fringe Benefits Tax Assessment Act 1986) is or becomes liable to pay
a fine or other penalty or any additional tax; and
(b) a registered tax agent (within the
meaning of the old law) would have been liable to pay to the employer the amount
of that fine, penalty or additional tax under section 120 of the Fringe
Benefits Tax Assessment Act 1986, but for its repeal by Schedule 1 to
this Act;
then, the employer may, in accordance with section 120 of
the Fringe Benefits Tax Assessment Act 1986, sue for and recover that
amount as if that section had not been repealed by Schedule 1 to this Act.
21 Special rule relating to the cancellation of registration
(1) If an entity was a registered tax agent or a
registered nominee within the meaning of the old law, then, the entity is taken
to have been previously a registered tax agent or BAS agent for the purposes of
subparagraph 50‑25(1)(c)(i) of the new law.
(2) If:
(a) an entity was a registered tax
agent or a registered nominee within the meaning of the old law; and
(b) the registration of the entity was
cancelled under section 251K or 251KE of the old law (other than because
the entity permanently ceased to carry on business as a registered tax agent);
then, the cancellation of the entity’s registration under section 251K
or 251KE of the old law is taken to have been a termination of registration
under Part 4 of the new law for the purposes of subparagraph 50‑25(1)(c)(ii)
of the new law.
Part 7—Reporting and disclosure obligations
22 Modified reporting requirements for first year
If commencement occurs during the last 3 months of
a financial year, then, despite subsection 60‑130(1) of the new law:
(a) the Chair is not required to
prepare a report for that financial year; and
(b) the period from commencement to
the end of the financial year must be dealt with in the next annual report.
23 Obligation to keep register
The requirements of section 60‑135 of the new law apply in
relation to an entity if:
(a) the entity was a registered tax
agent or a registered nominee within the meaning of the old law; and
(b) in the period of 12 months before commencement,
the registration of the entity was cancelled under section 251K or 251KE
of the old law other than because the entity permanently ceased to carry on
business as a registered tax agent.
24 Transfer of custody of records of Tax Agents’ Board
(1) This item applies to any records or documents that:
(a) are in the custody of a Tax
Agents’ Board immediately before commencement; or
(b) relate to the activities of a Tax
Agents’ Board but are in the custody of the Commissioner of Taxation before commencement.
(2) The records and documents must be transferred into
the custody of the Board as soon as practicable after commencement.
Part 8—Miscellaneous
25 Notifications given to the Board
If an entity notifies the Board under subitems 4(1), 5(1) and
5(2) of this Schedule, the entity’s notification must:
(a) be in a form approved by the
Board; and
(b) include any information, statement
or document required by the Board; and
(c) be given to the Board in a way required
by the Board.
26 Transitional regulations
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this
Schedule to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Schedule.
(2) In particular, regulations may be made prescribing
matters of a transitional nature (including any saving or application
provisions) relating to the amendments or repeals made by Schedule 1 to
this Act.
(3) Subitem (2) does not limit subitem (1).
[Minister’s second reading speech made in—
House of Representatives on 24 June 2009
Senate on 29 October 2009]