Section 50-20 TASA – A ticking time-bomb
Being a humble lawyer, I sometimes wonder about the intersections of different laws dealing with the same subject matter.?In particular, TASA offers one such example as it pertains to tax agents, and it's an area of concern when I raise it with the many accounting discussion groups I visit.?I won't mention the ashen-white faces after I've raised this specific issue, but it goes something like this.
In the context of providing a tax agent service, the ATO has asked for information regarding a taxpayer client's state of financial affairs in the midst of an audit.
For example, let's take the perennial favourite of a client who conducts an enterprise and gets mainly paid in cash.?They do still exist!
The ATO asks the question: "Does the taxpayer properly account for all transactions and bring to account all cash takings as assessable income?"
Invariably the response is yes, and since the enquiry came to the tax agent, it was the agent that forwarded on the query to the client, received their instructions and forwarded a reply.?Typically, the reply is in the affirmative.?But let's face it, the agent knew that the response couldn’t possibly be entirely true.?There's always some "leakage", isn’t there?
Now, the agent did do the right thing and obtained a written declaration from the client as required under s388-65 of Schedule 1 Taxation Administration Act 1953 (TAA) which talks about a necessary declaration being made by entity where an agent gives the document to the Commissioner, declaring the information provided to the agent for the preparation of the document is true and correct, and that the agent is authorised to provide the document to the Commissioner.
All well and good?
Unfortunately, not so.
Section 50-20 provides that a tax agent contravenes that section if they are registered and:
The civil penalties are 1250 penalty units for a corporation.?There are also criminal provisions in the TAA and the Criminal Code that parallel such an offence.
Whilst it's easy to follow the instructions of a long-standing client who needs to respond to the Commissioner, the moral of the story is don't convey or communicate anything to the ATO on a behalf of a client that you know is not true.
At the very least you'll be issued with a please explain by the TPB followed by an investigation and sanctions …. if you're lucky.?
From there it would be open to TASA to also prosecute the matter before the Federal Court seeking orders for a pecuniary penalty.
Food for thought!