Tax agent audit trap!
Tax agents regularly handle tax audits. Clients expect them (and only them) to deal with the ATO. Some clients expect tax agents to make the problem go away and, invariably, at no cost.
All tax agents know that every tax audit requires the taxpayer to provide documents as and when requested by the ATO. Sometimes there are documents that aren’t privileged and could be provided, but somehow aren’t. Sometimes a tax agent provides information that isn’t accurate or is misleading in an attempt to minimise a negative outcome or limit the scope of the ATO's enquiries.
This recently happened to a client of mine who was a tax agent and had reached the end of his tether. The audit was prolonged, and he had countless hours of unbillable WIP. Put simply, he wanted out, but the ATO still wanted to continue.
And that’s when I had more bad news for him.
Put to one side the serious offences contained in a myriad of laws including the Taxation Administration Act (ss8K and 8N) or the Criminal Code Act (eg. An offence of dishonestly influencing a public official carries a 10-year term of imprisonment!), there’s a section in the Tax Agent Services Act which also carries a sting in the tail.
Section 50-20 says that a tax agent must not prepare or certify a statement that they know is to be made to the ATO where the statement is false, incorrect or misleading in a material particular respect, or omits any matter without which the statement is misleading in a material respect. The penalty for a body corporate is 1250 penalty units, or around $262,500 for each proven offence. In other words, over the course of an audit, it could easily wipe out any tax agent practice, but even simpler, you can be assured your tax agent registration will be terminated. Guaranteed.
So here’s the moral of the story; if you're a tax agent and assist a client in a tax audit you need to be focused on what you say and do to the ATO. Don’t just simply pass on documents without carefully reviewing them and their effect. Make sure every question you respond to is answered carefully and to the greatest extent possible; and test everything your client tells you, don't just accept it. And don’t cut corners.
What if a client tries to persuade you to provide less or inaccurately answer a question to the ATO to assist them? Simple. Obtain advice. Otherwise, resign!
Tax Barrister
4 年The hardest thing for each of us is recognising the unknown unknowns!
Tax Barrister
4 年Arthur Athanasiou dont forget it is only a few short months ago a lawyer representing a client at the AAT was called out by the AAT. He was badly conflicted!
Tax Manager @ SBO Financial Principal, Tax Adviser @ Churton Kelly | CPA, Tax Planning
4 年I think another issue the article highlights is how important it is for agents to recognise when they are out of their depth. I am very confident to sun an audit on behalf of clients, but I also have colleagues I can bounce things off and when they sound alarms, I make sure the client gets a legal practitioner involved.
Tax Barrister
4 年Arthur Athanasiou the overnight joint ATO&TPB announcement is very welcome. The noose continues to tighten for sugar practitioners.
Tax Barrister
4 年Arthur you have identified two issues in one message. The first is the ATO auditor(s) who is (are) inadequately supervised or supported (trained) likely because the supervisor's seniority reflects the Peter principle. The second is the conflict issue as the RTA tries to protect the income stream. The more important the client has become to the RTA's total billings the bigger the temptation for the RTA to fudge, although many have no idea they are fudging because they don't have anywhere near sufficient historical papers (or file notes or working papers) to enable them to identify their base position. The problem is worse where the RTA is an employee of a client. On the same theme it is time the TPB ruled that RTA's lodging for their employer are in contravention of the Code of Ethics. Yeah I know that is harsh for those operating through entities but harsh is what is needed in the absence of more meaningful and helpful guidelines. It is really only an extension of the SMSF auditor practice