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This is a Bill, not an Act. For current law, see the Acts databases.

TAX AGENT SERVICES (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2009

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Tax Agent Services (Transitional
Provisions and Consequential
Amendments) Bill 2009
No. , 2009
(Treasury)
A Bill for 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
i Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Amendme nts
3
Part 1--Consequential amendments
3
A New Tax System (Goods and Services Tax) Act 1999
3
Corporations Act 2001
3
Fringe Benefits Tax Assessment Act 1986
3
Income Tax Assessment Act 1936
3
Income Tax Assessment Act 1997
4
Income Tax (Transitional Provisions) Act 1997
4
Taxation Administration Act 1953
4
Part 2--Other amendments
8
Tax Agent Services Act 2009
8
Schedule 2--Transitional provisions
9
Part 1--Preliminary
9
Part 2--Continuation of existing registrations etc.
10
Part 3--Applications for registration or re-registration
14
Div ision 1--Pending applications
14
Div ision 2--Applications not made, but time period for making
applications not expired
20
Div ision 3--New applications
21
Part 4--References to, and things done by, or in relation to, a
Tax Agents' Board
23
Part 5--Review of decisions
25
Part 6--Legal proceedings
27
Part 7--Reporting and disclosure obligations
29
Part 8--Miscellaneous
30
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 1
A Bill for an Act to amend the Tax Agent Services
1
Act 2009 and to deal with consequential and
2
transitional matters arising from the enactment of
3
that Act, and for related purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the Tax Agent Services (Transitional
7
Provisions and Consequential Amendments) Act 2009.
8
2 Commence ment
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
column 2 of the table. Any other statement in column 2 has effect
12
according to its terms.
13
2 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
1
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1,
Part 1
Immediately after the commencement of
Part 2 of the Tax Agent Services Act 2009.
3. Schedule 1,
Part 2
At the same time as Part 2 of the Tax Agent
Services Act 2009 commences.
4. Schedule 2
Immediately after the commencement of
Part 2 of the Tax Agent Services Act 2009.
Note:
This table relates only to the provisions of this Act as originally
2
passed by both Houses of the Parliament and assented to. It will not be
3
expanded to deal with provisions inserted in this Act after assent.
4
(2) Column 3 of the table contains additional information that is not
5
part of this Act. Information in this column may be added to or
6
edited in any published version of this Act.
7
3 Schedule(s)
8
Each Act that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
13
Amend ments Schedule 1
Consequential amend ments Part 1
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 3
Schedule 1
--
Amendments
1
Part 1
--
Consequential amendments
2
A New Tax System (Goods and Services Tax) Act 1999
3
1 Section 195-1 (definition of registered tax agent)
4
Repeal the definition.
5
Corporations Act 2001
6
2 Paragraph 766B(5)(c)
7
Omit "tax agent registered under Part VIIA of the Income Tax
8
Assessment Act 1936,", substitute "registered tax agent or BAS agent
9
(within the meaning of the Tax Agent Services Act 2009),".
10
Fringe Benefits Tax Assessment Act 1986
11
3 Part IX
12
Repeal the Part.
13
4 Subsection 136(1) (definition of registered tax agent)
14
Repeal the definition, substitute:
15
registered tax agent has the meaning given by subsection 90-1(1)
16
of the Tax Agent Services Act 2009.
17
Income Tax Assessment Act 1936
18
5 Subsection 6(1) (definition of registered tax agent)
19
Repeal the definition.
20
6 Paragraph 16(4)(b)
21
Repeal the paragraph, substitute:
22
(b) any board, or member of a board, performing a function or
23
exercising a power under a taxation law, for the purpose of
24
performing that function or exercising that power;
25
Schedule 1 A mendments
Part 1 Consequential amendments
4 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
7 Part VIIA
1
Repeal the Part.
2
Income Tax Assessment Act 1997
3
8 Section 214-185
4
Repeal the section.
5
9 Subsection 995-1(1) (paragraph (a) of the definition of
6
recognised tax adviser)
7
After "
*
registered tax agent", insert "or BAS agent".
8
10 Subsection 995-1(1) (definition of registered tax agent)
9
Repeal the definition, substitute:
10
registered tax agent has the meaning given by subsection 90-1(1)
11
of the Tax Agent Services Act 2009.
12
11 Subsection 995-1(1)
13
Insert:
14
registered tax agent or BAS agent has the same meaning as in the
15
Tax Agent Services Act 2009.
16
12 Subsection 995-1(1) (at the end of the definition of
17
taxation law)
18
Add:
19
; or (c) the Tax Agent Services Act 2009 or regulations made under
20
that Act.
21
Income Tax (Transitional Provisions) Act 1997
22
13 Section 214-130
23
Repeal the section.
24
Taxation Administration Act 1953
25
14 Subsection 2(1)
26
Insert:
27
Amend ments Schedule 1
Consequential amend ments Part 1
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 5
registered tax agent or BAS agent has the same meaning as in the
1
Tax Agent Services Act 2009.
2
15 After subsection 3B(1B)
3
Insert:
4
(1C) Subsection (1) does not apply in relation to sections 3D and 3E,
5
Part III and sections 15 and 15A insofar as that Part and those
6
sections apply in relation to the Tax Agent Services Act 2009.
7
16 At the end of subsection 3C(1AB)
8
Add "or the Tax Agent Services Act 2009".
9
17 Paragraph 8AAZLH(2A)(b)
10
After "registered tax agent", insert "or BAS agent".
11
18 At the end of Division 1 of Part III
12
Add:
13
8AC Application of Part to the Tax Agent Services Act 2009
14
This Part applies in relation to the Tax Agent Services Act 2009 as
15
if references in this Part (other than paragraph 8C(1)(b) and
16
sections 8HA, 8W, 8WC, 8ZE, 8ZG and 8ZH) to the
17
Commissioner, or an office of the Commissioner, were references
18
to the Tax Practitioners Board established by the Tax Agent
19
Services Act 2009.
20
19 Subsection 8J(2A)
21
After "registered tax agent", insert "or BAS agent".
22
20 After subsection 15(2)
23
Insert:
24
(3) This section applies in relation to the Tax Agent Services Act 2009
25
as if:
26
(a) references in this section to the Commissioner were
27
references to the Tax Practitioners Board (within the meaning
28
of that Act); and
29
(b) references in this section to a Second Commissioner or to a
30
Deputy Commissioner were omitted.
31
Schedule 1 A mendments
Part 1 Consequential amendments
6 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
21 At the end of section 15A
1
Add:
2
(12) This section applies in relation to the Tax Agent Services Act 2009
3
as if references in this section to the Commissioner were references
4
to the Chair of the Tax Practitioners Board (within the meaning of
5
that Act).
6
22 Subsection 255-1(2) in Schedule 1
7
After "Division 290", insert "of this Schedule or Part 5 of the Tax Agent
8
Services Act 2009".
9
23 After subsection 284-75(1) in Schedule 1
10
Insert:
11
(1A) However, you are not liable to an administrative penalty under
12
subsection (1) if:
13
(a) you engage a
*
registered tax agent or BAS agent; and
14
(b) you give the registered tax agent or BAS agent all relevant
15
taxation information; and
16
(c) the registered tax agent or BAS agent makes the statement;
17
and
18
(d) the statement results in a
*
shortfall amount; and
19
(e) the shortfall amount did not result from:
20
(i) intentional disregard by the registered tax agent or BAS
21
agent of a
*
taxation law; or
22
(ii) recklessness by the agent as to the operation of a
23
taxation law.
24
(1B) If you wish to rely on subsection (1A), you bear an evidential
25
burden in relation to paragraph (1A)(b).
26
24 After subsection 286-75(1) in Schedule 1
27
Insert:
28
(1A) However, you are not liable to an administrative penalty under
29
subsection (1) if:
30
(a) you engage a
*
registered tax agent or BAS agent; and
31
(b) you give the registered tax agent or BAS agent all relevant
32
taxation information to enable the agent to give a return,
33
Amend ments Schedule 1
Consequential amend ments Part 1
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 7
notice, statement or other document to the Commissioner in
1
the
*
approved form by a particular day; and
2
(c) the registered tax agent or BAS agent does not give the
3
return, notice, statement or other document to the
4
Commissioner in the approved form by that day; and
5
(d) the failure to give the return, notice, statement or other
6
document to the Commissioner did not result from:
7
(i) intentional disregard by the registered tax agent or BAS
8
agent of a
*
taxation law; or
9
(ii) recklessness by the agent as to the operation of a
10
taxation law.
11
(1B) If you wish to rely on subsection (1A), you bear an evidential
12
burden in relation to paragraph (1A)(b).
13
25 Section 298-80
14
Repeal the section, substitute:
15
298-80 Application of Subdivision
16
This Subdivision applies for the purposes of the following
17
provisions (the civil penalty provisions):
18
(a) Division 290 of this Schedule (civil penalties for the
19
promotion and implementation of schemes);
20
(b) Part 5 of the Tax Agent Services Act 2009 (civil penalties for
21
providing tax agent services while unregistered and for
22
certain conduct when providing tax agent services).
23
26 Application provision
24
(1)
The amendment made by item 23 applies in relation to statements given
25
on or after the commencement of the item.
26
(2)
The amendment made by item 24 applies in relation to a return, notice,
27
statement or other document required to be given on or after the
28
commencement of the item.
29
30
Schedule 1 A mendments
Part 2 Other amendments
8 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Part 2
--
Other amendments
1
Tax Agent Services Act 2009
2
27 Paragraph 20-5(4)(a)
3
Omit "item 12", substitute "item 7".
4
28 Subparagraphs 50-30(1)(c)(iii) and (2)(c)(iii)
5
Omit "or control", substitute "and control".
6
29 Subsection 70-40(1)
7
Omit "if the Board is satisfied that the information is relevant to",
8
substitute "for the purposes of".
9
30 After paragraph 70-40(1)(a)
10
Insert:
11
(aa) establishing whether a civil penalty provision of a
*
taxation
12
law has been, or is being, contravened; or
13
14
Transitional provisions Schedule 2
Preliminary Part 1
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 9
Schedule 2
--
Transitional provisions
1
Part 1
--
Preliminary
2
1 Definitions
3
(1)
In this Schedule:
4
Board means the Tax Practitioners Board established under
5
section 60-5 of the new law.
6
commencement means the commencement of Part 1, Schedule 1 to this
7
Act.
8
new law means the Tax Agent Services Act 2009.
9
old law means Part VIIA of the Income Tax Assessment Act 1936 as in
10
force immediately before commencement.
11
(2)
An expression used in this Schedule that is also used in the new law has
12
the same meaning in this Schedule as it has in the new law.
13
(3)
Subject to subitem (2), an expression used in this Schedule that is also
14
used in the Income Tax Assessment Act 1997 has the same meaning in
15
this Schedule as it has in that Act.
16
17
Schedule 2 Transitional provisions
Part 2 Continuation of existing registrations etc.
10 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Part 2
--
Continuation of existing registrations etc.
1
2 Registration of a tax agent continues in force
2
(1)
If an entity was, immediately before commencement, a registered tax
3
agent within the meaning of the old law, the entity is taken to be a
4
registered tax agent within the meaning of the new law for the period:
5
(a) beginning on the day on which this Schedule commences;
6
and
7
(b) ending on the day on which:
8
(i) the entity's registration would have expired under the
9
old law but for its repeal by Schedule 1 to this Act; or
10
(ii) if item 17 of this Schedule applies and the Board
11
decides to cancel the entity's registration--the entity's
12
registration is cancelled under the old law despite its
13
repeal by Schedule 1 to this Act; or
14
(iii) the entity's registration is terminated under
15
Subdivision 30-B or 40-A of the new law;
16
whichever occurs first.
17
Note:
A registered tax agent within the meaning of the new law is registered under
18
section 20-25 of the new law.
19
(2)
If an entity was, immediately before commencement, taken not to be a
20
registered tax agent within the meaning of the old law because of
21
subsection 251K(6) of the old law (which relates to suspension), the
22
entity is taken to have been suspended under section 30-25 of the new
23
law for the period:
24
(a) beginning on the day on which this Schedule commences;
25
and
26
(b) ending on the day on which the suspension would have ended
27
under the old law but for its repeal by Schedule 1 to this Act.
28
(3)
If subitem (2) applies in relation to an entity, immediately after the
29
period of suspension ends, the entity is taken to be a registered tax agent
30
within the meaning of the new law for the period:
31
(a) beginning on the day immediately after the day on which the
32
suspension ends; and
33
(b) ending on the day on which:
34
(i) the entity's registration would have expired under the
35
old law but for its repeal by Schedule 1 to this Act; or
36
Transitional provisions Schedule 2
Continuation of existing registrations etc. Part 2
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 11
(ii) if item 17 of this Schedule applies and the Board
1
decides to cancel the entity's registration--the entity's
2
registration is cancelled under the old law despite its
3
repeal by Schedule 1 to this Act; or
4
(iii) the entity's registration is terminated under
5
Subdivision 30-B or 40-A of the new law;
6
whichever occurs first.
7
Note:
A registered tax agent within the meaning of the new law is registered under
8
section 20-25 of the new law.
9
3 Special rule relating to the registration of nominees of tax
10
agents
11
If a person was, immediately before commencement, registered as a
12
nominee of a tax agent under the old law, the person is taken to be a
13
registered tax agent within the meaning of the new law for the period:
14
(a) beginning on the day on which this Schedule commences;
15
and
16
(b) ending on the day on which:
17
(i) the person's registration as a nominee would have
18
ceased under paragraph 251KD(2)(g) of the old law but
19
for its repeal by Schedule 1 to this Act because the
20
registration of the tax agent ceases to be in force under
21
the old law by virtue of subparagraph 2(1)(b)(i) of this
22
Schedule; or
23
(ii) if item 17 of this Schedule applies and the Board
24
decides to cancel the person's registration--the person's
25
registration is cancelled under the old law despite its
26
repeal by Schedule 1 to this Act; or
27
(iii) the person's registration as a registered tax agent is
28
terminated under Subdivision 30-B or 40-A of the new
29
law;
30
whichever occurs first.
31
Note 1: A registered tax agent within the meaning of the new law is registered under
32
section 20-25 of the new law.
33
Note 2: Subparagraph (b)(i)--the registration of the tax agent (of whom the person is the
34
nominee) will continue because of item 2 of this Schedule.
35
4 Special rule relating to the provision of tax agent services
36
by certain entities
37
Schedule 2 Transitional provisions
Part 2 Continuation of existing registrations etc.
12 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(1)
If:
1
(a) immediately before commencement, an entity was providing
2
a service that is a tax agent service (other than a BAS service
3
within the meaning of the new law) but was not required to
4
be registered as a tax agent under the old law; and
5
(b) during the 3 month period beginning immediately after
6
commencement, the entity notifies the Board that the entity
7
satisfies paragraph (a);
8
the entity is taken to be a registered tax agent within the meaning of the
9
new law for the 2 year period beginning immediately after
10
commencement.
11
Note 1: A registered tax agent within the meaning of the new law is registered under
12
section 20-25 of the new law.
13
Note 2: Paragraph (b)--for the form of the notification, see item 25 of this Schedule.
14
(2)
To avoid doubt, if an entity is taken to be a registered tax agent under
15
subitem (1), the Board may, in accordance with the new law, do either
16
or both of the following:
17
(a) impose conditions to which the entity's registration is
18
subject;
19
(b) require the entity to maintain professional indemnity
20
insurance;
21
as if the entity had applied for registration and the Board had decided to
22
grant the application.
23
5 Special rules relating to the provision of BAS services by
24
certain persons and entities
25
(1)
If:
26
(a) immediately before commencement, a person:
27
(i) was a person referred to in paragraph 251L(6)(a), (b) or
28
(c) of the old law; and
29
(ii) was providing a BAS service within the meaning of
30
subsection 251L(7) of the old law; and
31
(b) during the 6 month period beginning immediately after
32
commencement, the person notifies the Board that he or she
33
satisfies paragraph (a) of this subitem;
34
the person is taken to be a registered BAS agent within the meaning of
35
the new law for the 2 year period beginning immediately after
36
commencement.
37
Transitional provisions Schedule 2
Continuation of existing registrations etc. Part 2
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 13
Note 1: A registered BAS agent is registered under section 20-25 of the new law.
1
Note 2: Paragraph (b)--for the form of the notification, see item 25 of this Schedule.
2
(2)
If:
3
(a) an entity is not a person mentioned in subitem (1); and
4
(b) immediately before commencement, the entity was providing
5
a BAS service within the meaning of the new law (other than
6
a BAS service within the meaning of subsection 251L(7) of
7
the old law); and
8
(c) during the 6 month period beginning immediately after
9
commencement, the entity notifies the Board that the entity
10
satisfies paragraphs (a) and (b);
11
the entity is taken to be a registered BAS agent within the meaning of
12
the new law for the 2 year period beginning immediately after
13
commencement.
14
Note 1: A registered BAS agent is registered under section 20-25 of the new law.
15
Note 2: Paragraph (c)--for the form of the notification, see item 25 of this Schedule.
16
(3)
To avoid doubt, if a person is taken to be a registered BAS agent under
17
subitem (1), the Board may, in accordance with the new law, do either
18
or both of the following:
19
(a) impose conditions to which the person's registration is
20
subject;
21
(b) require the person to maintain professional indemnity
22
insurance;
23
as if the person had applied for registration and the Board had decided
24
to grant the application.
25
(4)
To avoid doubt, if an entity is taken to be a registered BAS agent under
26
subitem (2), the Board may, in accordance with the new law, do either
27
or both of the following:
28
(a) impose conditions to which the entity's registration is
29
subject;
30
(b) require the entity to maintain professional indemnity
31
insurance;
32
as if the entity had applied for registration and the Board had decided to
33
grant the application.
34
35
Schedule 2 Transitional provisions
Part 3 Applications for registration or re -registration
14 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Part 3
--
Applications for registration or
1
re-registration
2
Division 1
--
Pending applications
3
6 Pending applications for registration
--
tax agents
4
(1)
If:
5
(a) an entity has applied to a Tax Agents' Board for registration
6
under section 251J of the old law; and
7
(b) the Tax Agents' Board has not decided the application before
8
commencement;
9
then:
10
(c) the Board must decide the application in accordance with
11
section 251JA of the old law within 6 months after
12
commencement; and
13
(d) if the Board decides to grant the application--the Board
14
must:
15
(i) register the entity as a registered tax agent under
16
section 20-25 of the new law; and
17
(ii) notify the entity of its decision in accordance with
18
section 20-30 of the new law; and
19
(e) if the Board decides to reject the application--the Board
20
must notify the entity of its decision in accordance with
21
subsection 251JA(3) and section 251QB of the old law.
22
(2)
The Board is taken to have rejected the application if it has not made its
23
decision within 6 months after commencement.
24
(3)
To avoid doubt, if the Board decides to grant the application, the Board
25
may, in accordance with subsection 20-30(3) of the new law, require the
26
entity to maintain professional indemnity insurance.
27
7 Pending applications for re-registration
--
tax agents
28
(1)
If:
29
(a) an entity has applied to a Tax Agents' Board for
30
re-registration under section 251JB of the old law; and
31
(b) the Tax Agents' Board has not decided the application before
32
commencement;
33
Transitional provisions Schedule 2
Applications for registration or re -registration Part 3
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 15
then:
1
(c) the Board must decide the application in accordance with
2
section 251JC of the old law within 6 months after
3
commencement; and
4
(d) if the Board decides to grant the application--the Board
5
must:
6
(i) register the entity as a registered tax agent under
7
section 20-25 of the new law; and
8
(ii) notify the entity of its decision in accordance with
9
section 20-30 of the new law; and
10
(e) if the Board decides to reject the application--the Board
11
must notify the entity of its decision in accordance with
12
subsection 251JC(3) and section 251QB of the old law.
13
(2)
The Board is taken to have rejected the application if it has not made its
14
decision within 6 months after commencement.
15
(3)
To avoid doubt, if the Board decides to grant the application, the Board
16
may, in accordance with subsection 20-30(3) of the new law, require the
17
entity to maintain professional indemnity insurance.
18
(4)
The entity is taken to be a registered tax agent for the period:
19
(a) beginning on the day on which this Schedule commences;
20
and
21
(b) ending:
22
(i) on the day on which the Board makes its decision; or
23
(ii) on the day that occurs 6 months after commencement;
24
whichever occurs first.
25
(5)
If:
26
(a) an entity has requested a Tax Agents' Board to allow, under
27
paragraph 251JB(4)(b) of the old law, an application for
28
re-registration to be made at a later time but before the day
29
on which the entity's registration would have ended under the
30
old law but for its repeal by Schedule 1 to this Act; and
31
(b) the Tax Agents' Board has not made a decision before
32
commencement;
33
then:
34
(c) the Board must make a decision in accordance with
35
section 251JB of the old law; and
36
Schedule 2 Transitional provisions
Part 3 Applications for registration or re -registration
16 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(d) if the Board decides to allow the request:
1
(i) the entity may apply for re-registration within the time
2
decided by the Board; and
3
(ii) for the purposes of paragraph (1)(a) of this item, the
4
entity is taken to have applied to a Tax Agents' Board
5
for re-registration under section 251JB of the old law;
6
and
7
(e) if the Board decides to refuse the request--the Board must
8
notify the entity in accordance with subsection 251JB(5) and
9
section 251QB of the old law.
10
8 Pending applications for registration
--
nominees
11
(1)
If:
12
(a) an entity has applied to a Tax Agents' Board for registration
13
of a nominee under section 251KB of the old law; and
14
(b) the Tax Agents' Board has not decided the application before
15
commencement;
16
then:
17
(c) the Board must decide the application in accordance with
18
section 251KC of the old law within 6 months after
19
commencement; and
20
(d) if the Board decides to grant the application--the Board
21
must:
22
(i) register the nominee as a registered tax agent under
23
section 20-25 of the new law; and
24
(ii) notify the entity and the nominee of its decision in
25
accordance with section 20-30 of the new law; and
26
(e) if the Board decides to reject the application--the Board
27
must notify the entity and the nominee of its decision in
28
accordance with subsection 251KC(3) and section 251QB of
29
the old law.
30
(2)
The Board is taken to have rejected the application if it has not made its
31
decision within 6 months after commencement.
32
(3)
To avoid doubt, if the Board decides to grant the application, the Board
33
may, in accordance with subsection 20-30(3) of the new law, require the
34
nominee to maintain professional indemnity insurance.
35
9 Pending applications for re-registration
--
nominees
36
Transitional provisions Schedule 2
Applications for registration or re -registration Part 3
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 17
(1)
If:
1
(a) an entity has applied to a Tax Agents' Board for
2
re-registration of a nominee under section 251KB of the old
3
law; and
4
(b) the Tax Agents' Board has not decided the application before
5
commencement;
6
then:
7
(c) the Board must decide the application in accordance with
8
section 251KC of the old law within 6 months after
9
commencement; and
10
(d) if the Board decides to grant the application--the Board
11
must:
12
(i) register the nominee as a registered tax agent under
13
section 20-25 of the new law; and
14
(ii) notify the entity and the nominee of its decision in
15
accordance with section 20-30 of the new law; and
16
(e) if the Board decides to reject the application--the Board
17
must notify the entity and the nominee of its decision in
18
accordance with subsection 251KC(3) and section 251QB of
19
the old law.
20
(2)
The Board is taken to have rejected the application if it has not made its
21
decision within 6 months after commencement.
22
(3)
To avoid doubt, if the Board decides to grant the application, the Board
23
may, in accordance with subsection 20-30(3) of the new law, require the
24
nominee to maintain professional indemnity insurance.
25
(4)
The nominee is taken to be a registered tax agent for the period:
26
(a) beginning on the day on which this Schedule commences;
27
and
28
(b) ending:
29
(i) on the day on which the Board makes its decision; or
30
(ii) on the day that occurs 6 months after commencement;
31
whichever occurs first.
32
(5)
If:
33
(a) an entity has requested a Tax Agents' Board to allow, under
34
paragraph 251KB(4)(b) of the old law, an application for
35
re-registration of a nominee to be made at a later time but
36
before the day on which the nominee's registration would
37
Schedule 2 Transitional provisions
Part 3 Applications for registration or re -registration
18 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
have ended under the old law but for its repeal by Schedule 1
1
to this Act; and
2
(b) the Tax Agents' Board has not made a decision before
3
commencement;
4
then:
5
(c) the Board must make a decision in accordance with
6
section 251KB of the old law; and
7
(d) if the Board decides to allow the request:
8
(i) the entity may apply for re-registration within the time
9
decided by the Board; and
10
(ii) for the purposes of paragraph (1)(a) of this item, the
11
entity is taken to have applied to a Tax Agents' Board
12
for re-registration under section 251KB of the old law;
13
and
14
(e) if the Board decides to refuse the request--the Board must
15
notify the entity and the nominee in accordance with
16
subsection 251KB(5) and section 251QB of the old law.
17
10 Pending applications for registration
--
successor tax
18
agents
19
(1)
If:
20
(a) the registration of a partnership has been terminated because
21
of section 251JD of the old law; and
22
(b) a person has applied to a Tax Agents' Board in accordance
23
with subsection 251JE(1) of the old law; and
24
(c) the Tax Agents' Board has not registered the person under
25
section 251JF of the old law before commencement;
26
then, despite section 251JD of the old law, the partnership's registration
27
is taken not to have been terminated at the time of the change in the
28
constitution of the partnership.
29
(2)
If:
30
(a) the registration of a partnership (the original partnership)
31
has been terminated because of section 251JD of the old law;
32
and
33
(b) a new partnership has applied to a Tax Agents' Board in
34
accordance with subsection 251JE(2) of the old law; and
35
(c) the Tax Agents' Board has not registered the new partnership
36
under section 251JF of the old law before commencement;
37
Transitional provisions Schedule 2
Applications for registration or re -registration Part 3
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 19
then, despite section 251JD of the old law, the original partnership's
1
registration is taken not to have been terminated at the time of the
2
change in the constitution of the partnership.
3
(3)
If:
4
(a) a Tax Agents' Board received a document from an entity
5
purporting to be an application made in accordance with
6
section 251JE of the old law; and
7
(b) the Tax Agents' Board notified the entity in accordance with
8
subsection 251JE(8) of the old law that the Tax Agents'
9
Board was of the opinion that the document was not an
10
application made in accordance with section 251JE of the old
11
law; and
12
(c) at commencement, the 7 day period mentioned in subsection
13
251JE(9) of the old law has not expired; and
14
(d) the entity has not made an application under section 251JE of
15
the old law, as allowed by subsection 251JE(9) of the old
16
law;
17
then:
18
(e) the entity may, under subsection 251JE(9) of the old law,
19
apply in accordance with section 251JE of the old law within
20
7 days after commencement; and
21
(f) if the Board is of the opinion that the entity has applied in
22
accordance with section 251JE of the old law--the Board
23
must:
24
(i) register the entity as a registered tax agent under
25
section 20-25 of the new law; and
26
(ii) notify the entity of its decision in accordance with
27
section 20-30 of the new law.
28
(4)
To avoid doubt, if the Board decides to grant the application, the Board
29
may, in accordance with subsection 20-30(3) of the new law, require the
30
entity to maintain professional indemnity insurance.
31
11 Pending applications
--
refund of lodgment fees
32
If:
33
(a) an application made under section 251J, 251JB or 251KB of
34
the old law is covered by this Division; and
35
(b) the application is withdrawn; and
36
Schedule 2 Transitional provisions
Part 3 Applications for registration or re -registration
20 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(c) the application is neither granted nor refused by the Board
1
before it is withdrawn;
2
the Commissioner must refund the lodgment fee paid in respect of the
3
application under section 251KF of the old law, despite its repeal by
4
Schedule 1 to this Act.
5
Division 2
--
Applications not made, but time period for
6
making applications not expired
7
12 Applications for registration not made
--
successor tax
8
agents
9
(1)
If:
10
(a) the registration of a partnership has been terminated because
11
of section 251JD of the old law; and
12
(b) at commencement:
13
(i) a person had not applied to a Tax Agents' Board in
14
accordance with subsection 251JE(1) of the old law; but
15
(ii) the 30 day period within which an application had to be
16
made (as mentioned in subsection 251JE(4) of the old
17
law) had not expired;
18
then, the person may apply to the Board in accordance with subsection
19
251JE(1) of the old law, despite its repeal by Schedule 1 of this Act,
20
within the 30 day period.
21
(2)
If the person makes an application mentioned in subitem (1), then
22
despite section 251JD of the old law, the partnership's registration is
23
taken not to have been terminated at the time of the change in the
24
constitution of the partnership.
25
(3)
If:
26
(a) the registration of a partnership (the original partnership)
27
has been terminated because of section 251JD of the old law;
28
and
29
(b) at commencement:
30
(i) a new partnership had not applied to a Tax Agents'
31
Board in accordance with subsection 251JE(2) of the
32
old law; but
33
Transitional provisions Schedule 2
Applications for registration or re -registration Part 3
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 21
(ii) the 30 day period within which an application had to be
1
made (as mentioned in subsection 251JE(4) of the old
2
law) had not expired;
3
then, the new partnership may apply to the Board in accordance with
4
subsection 251JE(2) of the old law, despite its repeal by Schedule 1 of
5
this Act, within the 30 day period.
6
(4)
If the new partnership makes an application mentioned in subitem (3),
7
then despite section 251JD of the old law, the original partnership's
8
registration is taken not to have been terminated at the time of the
9
change in the constitution of the partnership.
10
Division 3
--
New applications
11
13 Special rule for applications for registration as a
12
registered tax agent
13
(1)
If:
14
(a) an entity applies for registration as a registered tax agent
15
under section 20-20 of the new law before the end of the 6
16
month period beginning immediately after commencement;
17
and
18
(b) the entity would be eligible for registration but for the
19
operation of:
20
(i) paragraph 20-5(1)(b) of the new law (which requires the
21
Board to be satisfied of requirements prescribed by
22
regulations, including requirements in relation to
23
qualifications and experience in respect of registration
24
as a registered tax agent); or
25
(ii) paragraph 20-5(2)(c) or (3)(d); and
26
(c) immediately before commencement, the entity was providing
27
a tax agent service within a particular area of the taxation
28
laws; and
29
(d) the Board is satisfied that the entity had been providing that
30
tax agent service to a competent standard for a reasonable
31
period before making the application;
32
then, despite paragraph 20-5(1)(b), (2)(c) or (3)(d) of the new law, the
33
entity is eligible for registration.
34
(2)
The entity is taken to be a registered tax agent within the meaning of the
35
new law for the period:
36
Schedule 2 Transitional provisions
Part 3 Applications for registration or re -registration
22 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(a) beginning on the day on which this Schedule commences;
1
and
2
(b) ending immediately before the day on which the Board
3
makes a decision under section 20-25 of the new law.
4
14 Special rule for applications for registration as a
5
registered BAS agent
6
(1)
If:
7
(a) an entity applies for registration as a registered BAS agent
8
under section 20-20 of the new law before the end of the 3
9
year period beginning immediately after commencement; and
10
(b) the entity would be eligible for registration but for the
11
operation of:
12
(i) paragraph 20-5(1)(b) of the new law (which requires the
13
Board to be satisfied of requirements prescribed by
14
regulations, including requirements in relation to
15
qualifications and experience in respect of registration
16
as a registered BAS agent); or
17
(ii) paragraph 20-5(2)(c) or (3)(d); and
18
(c) the Board is satisfied that the entity had been providing BAS
19
services to a competent standard for a reasonable period
20
before making the application;
21
then, despite paragraph 20-5(1)(b), (2)(c) or (3)(d) of the new law, the
22
entity is eligible for registration.
23
(2)
If:
24
(a) an entity is taken to be a registered BAS agent under item 5
25
of this Schedule; and
26
(b) the entity is eligible for registration under subitem (1) of this
27
item;
28
then, despite subsection 20-25(4) of the new law, the period that the
29
Board may determine under that subsection must be at least 12 months.
30
31
Transitional provisions Schedule 2
References to, and things done by, or in relation to, a Tax Agents' Board Part 4
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 23
Part 4
--
References to, and things done by, or in
1
relation to, a Tax Agents' Board
2
15 Things done by, or in relation to, a Tax Agents' Board
3
(1)
If a thing was done by, or in relation to, a Tax Agents' Board under the
4
old law, then the thing is taken, for the purposes of the operation of any
5
law after commencement, to have been done by, or in relation to, the
6
Board.
7
(2)
The Minister may, by writing, determine that subitem (1) does not apply
8
in relation to a specified thing done by, or in relation to, a Tax Agents'
9
Board.
10
(3)
To avoid doubt, doing a thing includes making an instrument.
11
(4)
A determination under subitem (2) is not a legislative instrument.
12
16 References in instruments
13
(1)
If:
14
(a) an instrument is in force immediately before commencement;
15
and
16
(b) the instrument contains a reference to a Tax Agents' Board;
17
then, the instrument has effect after commencement as if the reference
18
to the Tax Agents' Board were a reference to the Board.
19
(2)
The Minister may, by writing, determine that subitem (1) does not apply
20
in relation to a specified reference.
21
(3)
A determination made under subitem (2) is not a legislative instrument.
22
17 Continuation
of inquiries by a Tax Agents' Board
23
(1)
If, before commencement, a Tax Agents' Board had given an entity a
24
show cause notice, then:
25
(a) within 60 days after commencement, the Board must decide
26
whether to investigate the entity; and
27
(b) if the Board decides to investigate the entity--the Board
28
must:
29
(i) notify the entity in accordance with section 60-95 of the
30
new law; and
31
Schedule 2 Transitional provisions
Part 4 References to, and things done by, or in relation to, a Tax Agents' Board
24 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(ii) carry out its investigation in accordance with the
1
process required or allowed by Subdivision 60-E of the
2
new law as if the Board were investigating conduct that
3
may breach the Tax Agent Services Act 2009; and
4
(iii) take whatever action in relation to the entity allowed by
5
the old law, despite its repeal by Schedule 1 to this Act,
6
that the Board considers appropriate; and
7
(c) if the Board decides not to investigate the entity--the Board
8
must, within 30 days of its decision, notify the entity, in
9
writing, that no further action will be taken in relation to the
10
show cause notice.
11
(2)
If a decision is not made within 60 days after commencement, the
12
Board is taken to have decided not to investigate the entity.
13
(3)
If, as allowed by subparagraph (1)(b)(iii), the Board suspends an entity,
14
the entity is taken not be a registered tax agent within the meaning of
15
the new law while the entity is suspended, except for the purposes of the
16
following Parts of the new law:
17
(a) Part 2 (Registration);
18
(b) Part 3 (The Code of Professional Conduct);
19
(c) Part 4 (Termination of registration).
20
(4)
If:
21
(a) a Tax Agents' Board required a person to provide evidence,
22
information or any document; and
23
(b) the evidence, information or document was not provided to
24
the Tax Agents' Board before commencement;
25
then, the evidence, information or document must be provided to the
26
Board.
27
(5)
In this item:
28
show cause notice means a written notice to an entity that:
29
(a) sets out the grounds on which a Tax Agents' Board is giving
30
the notice; and
31
(b) invites the entity to respond to the Tax Agents' Board, in
32
writing, addressing the grounds on which the Tax Agents'
33
Board has given the notice; and
34
(c) states the period within which the entity must give the written
35
response to the Tax Agents' Board.
36
Transitional provisions Schedule 2
Review of decisions Part 5
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 25
Part 5
--
Review of decisions
1
18 Rights of review of certain decisions
2
(1)
Despite the repeal of section 251QA of the old law by Schedule 1 to this
3
Act, an application may be made to the Administrative Appeals
4
Tribunal under that section for review of any of the following decisions:
5
(a) a decision by a Tax Agents' Board made before
6
commencement under a provision of the old law if, at
7
commencement, the period for making an application for
8
review has not ended;
9
(b) a decision by the Board to reject an application for
10
registration decided in accordance with section 251JA of the
11
old law under paragraph 6(1)(c) of this Schedule;
12
(c) a decision by the Board to reject an application for
13
re-registration decided in accordance with section 251JC of
14
the old law under paragraph 7(1)(c) of this Schedule;
15
(d) a decision by the Board to refuse a request to allow an
16
application for re-registration to be made at a later time in
17
accordance with section 251JB of the old law under
18
paragraph 7(5)(c) of this Schedule;
19
(e) a decision by the Board to reject an application for
20
registration decided in accordance with section 251KC of the
21
old law under paragraph 8(1)(c) of this Schedule;
22
(f) a decision by the Board to reject an application for
23
re-registration decided in accordance with section 251KC of
24
the old law under paragraph 9(1)(c) of this Schedule;
25
(g) a decision by the Board to refuse a request to allow an
26
application for re-registration to be made at a later time in
27
accordance with section 251KB of the old law under
28
paragraph 9(5)(c) of this Schedule;
29
(h) a decision by the Board to suspend or cancel the registration
30
of an entity after investigating the entity in accordance with
31
the new law as referred to in item 17 of this Schedule.
32
(2)
To avoid doubt, an application may be made to the Administrative
33
Appeals Tribunal under section 70-10 of the new law for review of any
34
of the following decisions of the Board:
35
(a) a decision under section 20-25 of the new law, as applied by
36
one of the following provisions of this Schedule, to specify a
37
condition to which registration is subject:
38
Schedule 2 Transitional provisions
Part 5 Review of decisions
26 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
(i) paragraph 4(2)(a);
1
(ii) paragraph 5(3)(a);
2
(iii) paragraph 5(4)(a);
3
(iv) subparagraph 6(1)(d)(i);
4
(v) subparagraph 7(1)(d)(i);
5
(vi) subparagraph 8(1)(d)(i);
6
(vii) subparagraph 9(1)(d)(i);
7
(viii) subparagraph 10(3)(f)(i);
8
(b) a decision under section 20-30 of the new law, as applied by
9
one of the following provisions of this Schedule, to require
10
professional indemnity insurance to be maintained:
11
(i) paragraph 4(2)(b);
12
(ii) paragraph 5(3)(b);
13
(iii) paragraph 5(4)(b);
14
(iv) subparagraph 6(1)(d)(ii);
15
(v) subparagraph 7(1)(d)(ii);
16
(vi) subparagraph 8(1)(d)(ii);
17
(vii) subparagraph 9(1)(d)(ii);
18
(viii) subparagraph 10(3)(f)(ii);
19
(c) a decision under subsection 60-125(4) of the new law, as
20
applied by subparagraph 17(1)(b)(ii) of this Schedule, to
21
extend the period of time within which an investigation is to
22
be completed.
23
24
Transitional provisions Schedule 2
Legal proceedings Part 6
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 27
Part 6
--
Legal proceedings
1
19 Substitution of Board as a party to pending proceedings
2
If any proceedings to which a Tax Agents' Board was a party were
3
pending in any court or tribunal immediately before commencement,
4
the Board is substituted for the Tax Agents' Board, after
5
commencement, as a party to the proceedings.
6
20 Legal proceedings by taxpayers to recover fines etc.
7
(1)
If:
8
(a) a taxpayer is or becomes liable to pay a fine or other penalty,
9
additional tax, shortfall interest charge or the general interest
10
charge under a provision of:
11
(i) the Income Tax Assessment Act 1936; or
12
(ii) the Income Tax Assessment Act 1997; or
13
(iii) Part IVC of the Taxation Administration Act 1953, so
14
far as that Part relates to the Income Tax Assessment Act
15
1936, the Income Tax Assessment Act 1997 or
16
Schedule 1 to the Taxation Administration Act 1953; or
17
(iv) Schedule 1 to the Taxation Administration Act 1953;
18
and
19
(b) a registered tax agent (within the meaning of the old law) or a
20
person exempted under section 251L of the old law would
21
have been liable to pay to the taxpayer the amount of that
22
fine or other penalty, additional tax, shortfall interest charge
23
or general interest charge under section 251M of the old law,
24
but for its repeal by Schedule 1 to this Act;
25
then, the taxpayer may, in accordance with section 251M of the old law,
26
sue for and recover that amount as if that section had not been repealed
27
by Schedule 1 to this Act.
28
(2)
If:
29
(a) an employer (within the meaning of the Fringe Benefits Tax
30
Assessment Act 1986) is or becomes liable to pay a fine or
31
other penalty or any additional tax; and
32
(b) a registered tax agent (within the meaning of the old law)
33
would have been liable to pay to the employer the amount of
34
that fine, penalty or additional tax under section 120 of the
35
Schedule 2 Transitional provisions
Part 6 Legal proceedings
28 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Fringe Benefits Tax Assessment Act 1986, but for its repeal
1
by Schedule 1 to this Act;
2
then, the employer may, in accordance with section 120 of the Fringe
3
Benefits Tax Assessment Act 1986, sue for and recover that amount as if
4
that section had not been repealed by Schedule 1 to this Act.
5
21 Special rule relating to the cancellation of registration
6
(1)
If an entity was a registered tax agent or a registered nominee within the
7
meaning of the old law, then, the entity is taken to have been previously
8
a registered tax agent or BAS agent for the purposes of subparagraph
9
50-25(1)(c)(i) of the new law.
10
(2)
If:
11
(a) an entity was a registered tax agent or a registered nominee
12
within the meaning of the old law; and
13
(b) the registration of the entity was cancelled under
14
section 251K or 251KE of the old law (other than because the
15
entity permanently ceased to carry on business as a registered
16
tax agent);
17
then, the cancellation of the entity's registration under section 251K or
18
251KE of the old law is taken to have been a termination of registration
19
under Part 4 of the new law for the purposes of subparagraph
20
50-25(1)(c)(ii) of the new law.
21
Transitional provisions Schedule 2
Reporting and disclosure obligations Part 7
Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 No.
, 2009 29
Part 7
--
Reporting and disclosure obligations
1
22 Modified reporting requirements for first year
2
If commencement occurs during the last 3 months of a financial year,
3
then, despite subsection 60-130(1) of the new law:
4
(a) the Chair is not required to prepare a report for that financial
5
year; and
6
(b) the period from commencement to the end of the financial
7
year must be dealt with in the next annual report.
8
23 Obligation to keep register
9
The requirements of section 60-135 of the new law apply in relation to
10
an entity if:
11
(a) the entity was a registered tax agent or a registered nominee
12
within the meaning of the old law; and
13
(b) in the period of 12 months before commencement, the
14
registration of the entity was cancelled under section 251K or
15
251KE of the old law other than because the entity
16
permanently ceased to carry on business as a registered tax
17
agent.
18
24 Transfer of custody of records of Tax Agents' Board
19
(1)
This item applies to any records or documents that:
20
(a) are in the custody of a Tax Agents' Board immediately
21
before commencement; or
22
(b) relate to the activities of a Tax Agents' Board but are in the
23
custody of the Commissioner of Taxation before
24
commencement.
25
(2)
The records and documents must be transferred into the custody of the
26
Board as soon as practicable after commencement.
27
28
Schedule 2 Transitional provisions
Part 8 Miscellaneous
30 Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009
No. , 2009
Part 8
--
Miscellaneous
1
25 Notifications given to the Board
2
If an entity notifies the Board under subitems 4(1), 5(1) and 5(2) of this
3
Schedule, the entity's notification must:
4
(a) be in a form approved by the Board; and
5
(b) include any information, statement or document required by
6
the Board; and
7
(c) be given to the Board in a way required by the Board.
8
26 Transitional regulations
9
(1)
The Governor-General may make regulations prescribing matters:
10
(a) required or permitted by this Schedule to be prescribed; or
11
(b) necessary or convenient to be prescribed for carrying out or
12
giving effect to this Schedule.
13
(2)
In particular, regulations may be made prescribing matters of a
14
transitional nature (including any saving or application provisions)
15
relating to the amendments or repeals made by Schedule 1 to this Act.
16
(3)
Subitem (2) does not limit subitem (1).
17

 

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