Proposed TPB changes released for consultation

On 18 November 2022, the Treasury released for consultation exposure draft legislation titled Treasury Laws Amendment (Measures for Consultation) Bill 2022: Tax Practitioners Board Review (the ED) and accompanying explanatory materials.

The ED contains proposed amendments to the Tax Agent Services Act 2009 (TAS Act) to ensure that tax agent services and BAS services provided to the public are of an appropriate ethical and professional standard and to enhance the financial independent of the Tax Practitioners Board (the TPB) from the ATO.

In 2019, the Government announced an independent review into the effectiveness of the TPB and the TAS Act. On 27 November 2020, the Government released the final report of the Tax Practitioners Board Review (the Review) and its response to it.

The Government supports 20 of the Review’s 28 recommendations in full, in part or in principle and seeks to achieve three key objectives:

• to increase the independence and effectiveness of the TBP
• ensuring high standards in the tax profession
• streamline the regulation of tax practitioners.

The ED proposes to implement five recommendations of the Tax Practitioners Board Review (the Review) as outlined below.

Comments and Submissions

Submissions are due 11 December 2022. See the Treasury’s ED webpage for consultation details.

Proposed changes directly affecting registered agents

Recommendation 4.6 — Requiring tax practitioners to ensure their employees and associates are not disqualified entities

Recommendation 4.6 is anchored in concerns in relation to insufficient internal governance practices leading to tax practitioners employing or using people who are unsuitable to provide tax services on their behalf. In particular, there is an identified gap in the regulation of tax services whereby entities who would not qualify to be registered (e.g. an applicant whose registration application was rejected) are able to provide tax services under the auspices of a registered tax practitioner.

The ED proposes the following three obligations:

• a disqualified entity must disclose their disqualified status to the tax practitioner if they are being employed or used to provide tax agent services on behalf of the tax practitioner
• tax practitioners have an obligation to ensure they do not employ or use disqualified entities to provide tax agent services on their behalf, unless approved by the TPB
• tax practitioners must disclose to the TPB, details of a disqualified entity that they have employed or used to provide tax agent services on their behalf that have not been approved by the TPB.

The proposed definition of a ‘disqualified entity’ is partially based on the current ‘fit and proper’ criteria, with some additional factors:

Failure by a registered agent to give a notice to the TPB, or by a disqualified entity to give a notice to the registered agent, may result in a civil penalty.

The TPB must decide an application within 30 days. The TPB may give approval, having regard to:

• the reasons why the entity is a disqualified entity and the circumstances relating to those reasons
• the proposed role that the entity would perform in providing the tax agent services on behalf of the registered agent
• the extent to which the reasons the entity is a disqualified entity are relevant to the entity’s ability to perform the proposed role to an appropriate standard of professional and ethical conduct
• any other matters that the TPB considered relevant.

The proposed amendments will commence from the first 1 January, 1 April, 1 July or 1 October to occur after the day the Act receives Royal Assent. Transitional provisions will apply to appropriately capture existing and new employees or entities who may be disqualified entities, and provide tax practitioners and regulators with implementation time.

Recommendation 4.7 — Conversion to an annual renewal period

The ED proposes to convert the renewal period from at least every three years to at least every year. The change will remove the requirement for registered agents to provide an annual declaration to the TPB, and will align renewal with other requirements including maintaining professional indemnity insurance and undertaking continued professional education.

The maximum time period for the TPB to determine the outcome of an application will be reduced to four months.

These changes are proposed to apply prospectively to any registration or renewal applications submitted on or after 1 July 2023.

Other proposed TPB changes

Recommendation 2.1 — Update and modernise the objects clause of the TAS Act

The proposed replacement s. 2-5 updates and modernises the object of the TAS Act, to support public trust and confidence in the integrity of the tax profession and the tax system. This is in addition to the current object which is to ensure that the tax agent services are provided to the community in accordance with appropriate standards of professional and ethical conduct.

The proposed new object will commence from the first 1 January, 1 April, 1 July or 1 October to occur after the day the Act receives Royal Assent.

Recommendation 3.1 — Establishing a special account for the TPB

A Special Account has been established for the TPB, meaning funding will largely be independent from the ATO. This dispenses with the need for yearly discussions with the Commissioner and provides the TPB with greater financial independence and power to manage its funding needs. In practice, the TPB will be primarily funded by the fees received from tax practitioners, and supplemented by amounts appropriated by the Parliament. Currently, the ATO has the final decision regarding the portion of its annual budget allocated to the TPB.

Financial independence aligns with the overall purpose of the Review, to recognise the TPB as having distinct functions and powers form the ATO, and as having responsibility for regulating tax practitioners with consistency and limits undue influence from the ATO.

The TPB and ATO will still be able to continue utilising their existing synergies and shared services which reduces overall costs and allows both bodies to benefit from information sharing.

These changes are proposed to commence 1 July 2023.

Recommendation 5.1 — Enable the Minister to supplement the Code

The Code of Professional Conduct (the Code) in the TAS Act sets out the professional and ethical standards that registered tax practitioners are required to comply with.

The proposed amendments enable the Minister to specify, in a legislative instrument, additional obligations that registered tax agents and BAS agents must comply with. The power cannot be used to reduce any existing obligations under the Code.

The proposed process also ensures appropriate consultation with key stakeholders and parliamentary oversight.

The proposed amendments will commence from the first 1 January, 1 April, 1 July or 1 October to occur after the day the Act receives Royal Assent.

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