PART 2
-
REGISTRATION
Division 20
-
Registration
Subdivision 20-A
-
Eligibility for registration
SECTION 20-5
Eligibility for registration as registered tax agent or BAS agent
Individuals
20-5(1)
An individual, aged 18 years or more, is eligible for registration as a
*
registered tax agent or BAS agent if the Board is satisfied that:
(a)
the individual is a fit and proper person; and
(b)
the individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registration as a registered tax agent or BAS agent; and
(c)
in the case of registration which is not a renewal
-
the individual maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements; and
(d)
in the case of a renewal of registration
-
the individual:
(i)
maintains, at the time of applying for registration, professional indemnity insurance that meets the Board
'
s requirements; and
(ii)
has completed continuing professional education that meets the Board
'
s requirements.
Note 1:
An individual in the capacity of trustee of a trust can be registered: see section
70-15
.
Note 2:
Subsection
(4)
provides for an exception to paragraph
(1)(b)
for pre-1988 tax agents and nominees.
History
S 20-5(1) be amended by No 115 of 2021, s 3 and Sch 1 item 136(b), by substituting
"
tax agent or BAS agent
"
for
"
tax agent, BAS agent or tax (financial) adviser
"
(wherever occurring), effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading.
S 20-5(1) amended by No 141 of 2020, s 3 and Sch 4 item 102, by substituting para (c) and (d), applicable to an application for renewal of registration whether made before, on or after 1 January 2021. Para (c) and (d) formerly read:
(c)
the individual maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements; and
(d)
in the case of a renewal of registration
-
the individual has completed continuing professional education that meets the Board
'
s requirements.
S 20-5(1) amended by No 120 of 2013, s 3 and Sch 1 item 4, by substituting
"
, BAS agent or tax (financial) adviser
"
for
"
or BAS agent
"
(wherever occurring), effective 1 July 2014. No 120 of 2013, s 3 and Sch 1 Pt 3 contains the following transitional provisions:
Part 3
-
Transitional provisions
48 Definitions
48
In this Part:
authorised representative
has the same meaning as in Chapter
7
of the
Corporations Act 2001
.
entity
has the same meaning as in the
Income Tax Assessment Act 1997
.
evidential burden
has the same meaning as in the new law.
financial services licensee
has the same meaning as in Chapter
7
of the
Corporations Act 2001
.
new law
means the
Tax Agent Services Act 2009
.
notification period
means the period:
(a)
beginning on 1 July 2014; and
(b)
ending on 31 December 2015.
representative
has the meaning given by paragraph (a) of the definition of that expression in section
910A
of the
Corporations Act 2001
.
taxation law
has the same meaning as in the
Income Tax Assessment Act 1997
.
transitional period
means the period:
(a)
beginning on 1 January 2016; and
(b)
ending on 30 June 2017.
49 Provision of tax (financial) advice services by certain entities during the notification period
Becoming a registered tax (financial) adviser
49(1)
If:
(a)
during the notification period, an entity notifies the Board that the entity provides tax (financial) advice services; and
(b)
on the day that the Board is notified, the entity is a financial services licensee or an authorised representative of a financial services licensee;
the entity is taken, for the purposes of the new law, to be a registered tax (financial) adviser. The entity
'
s registration commences on the day the Board is notified and expires on the applicable day set out in column 2 of the following table:
|
Period of registration as a registered tax (financial) adviser
|
|
Column 1
|
Column 2
|
|
Item
|
If an entity notifies the Board during
[mldr ]
|
then, the entity
'
s registration expires on
[mldr ]
|
| 1 |
July, August, September, October, November or December 2014 |
31 January 2018 |
| 2 |
January, February, March, April, May or June 2015 |
31 October 2017 |
| 3 |
July, August, September, October, November or December 2015 |
31 July 2017 |
Note:
A registered tax (financial) adviser is registered under section
20-25
of the new law.
49(2)
If an entity notifies the Board under subitem (1), 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.
49(3)
To avoid doubt, if an entity is taken to be a registered tax (financial) adviser under subitem (1), the Board may impose conditions to which the entity
'
s registration is subject.
Services may be provided while unregistered if accompanied by disclosure
49(4)
Despite subsection
50-5(2A)
of the new law, a tax (financial) advice service may be provided during the notification period if it is:
(a)
provided by a financial services licensee or a representative of the licensee; and
(b)
accompanied by a statement that:
(i)
the provider of the advice is not a registered tax (financial) adviser under the new law; and
(ii)
if the receiver of the advice intends to rely on the advice to satisfy liabilities or obligations or claim entitlements that arise, or could arise, under a taxation law, the receiver should request advice from a registered tax agent or a registered tax (financial) adviser.
49(5)
A person who wishes to rely on subitem (4) in proceedings for a contravention of a civil penalty provision bears an evidential burden in relation to the matters in that subitem.
50 Registering as a registered tax (financial) adviser during the transitional period
50
If:
(a)
an entity is a financial services licensee or a representative of a financial services licensee (other than an entity taken to be a registered tax (financial) adviser under item 49); and
(b)
the entity applies for registration as a registered tax (financial) adviser under section
20-20
of the new law during the transitional period; and
(c)
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 (financial) adviser); or
(ii)
subparagraph
20-5(2)(c)(iii)
or
(3)(d)(iii)
of the new law; and
(d)
the Board is satisfied that the entity has sufficient experience to be able to provide tax (financial) advice services to a competent standard;
then, despite paragraph
20-5(1)(b)
,
(2)(c)
or
(3)(d)
of the new law, the entity is eligible for registration.
51 Transitional regulations
51(1)
The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Part to be prescribed; and
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Part.
51(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.
51(3)
Subitem (2) does not limit subitem (1).
S 20-5(1) amended by No 120 of 2013, s 3 and Sch 2 item 1, by inserting paras (c) and (d), applicable in relation to an application for registration, including renewal of registration, as a registered tax agent, BAS agent or tax (financial) adviser that is made on or after 30 June 2013.
Partnerships
20-5(2)
A partnership is eligible for registration as a
*
registered tax agent or BAS agent if the Board is satisfied that:
(a)
each partner who is an individual is:
(i)
aged 18 years or more; and
(ii)
a fit and proper person; and
(b)
if a company is a partner:
(i)
each director of the company is a fit and proper person; and
(ii)
the company is not under external administration; and
(iii)
the company has not been convicted of a
*
serious taxation offence or an offence involving fraud or dishonesty during the previous 5 years; and
(c)
the partnership has:
(i)
in the case of registration as a
*
registered tax agent
-
a sufficient number of individuals, being registered tax agents, to provide
*
tax agent services to a competent standard, and to carry out supervisory arrangements; or
(ii)
in the case of registration as a
*
registered BAS agent
-
a sufficient number of individuals, being registered tax agents or BAS agents, to provide
*
BAS services to a competent standard, and to carry out supervisory arrangements; and
(iii)
(Repealed by No 115 of 2021)
(d)
in the case of registration which is not a renewal
-
the partnership maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements; and
(e)
in the case of a renewal of registration
-
the partnership maintains, at the time of applying for registration, professional indemnity insurance that meets the Board
'
s requirements.
History
S 20-5(2) amended by No 115 of 2021, s 3 and Sch 1 item 136(b), by substituting
"
tax agent or BAS agent
"
for
"
tax agent, BAS agent or tax (financial) adviser
"
, effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading.
S 20-5(2) amended by No 115 of 2021, s 3 and Sch 1 items 108 and 109, by substituting
"
arrangements; and
"
for
"
arrangements; or
"
in para (c)(ii) and repealing para (c)(iii), effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading. Para (c)(iii) formerly read:
(iii)
in the case of registration as a *registered tax (financial) adviser
-
taking into account the requirements of paragraphs 912A(1)(d) to (f) of the
Corporations Act 2001
, a sufficient number of individuals, being registered tax agents or registered tax (financial) advisers, to provide *tax (financial) advice services to a competent standard, and to carry out supervisory arrangements; and
S 20-5(2) amended by No 141 of 2020, s 3 and Sch 4 item 103, by substituting para (d) and (e) for para (d), applicable to an application for renewal of registration whether made before, on or after 1 January 2021. Para (d) formerly read:
(d)
the partnership maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements.
S 20-5(2) amended by No 70 of 2015, s 3 and Sch 6 items 47 and 48, by substituting
"
; or
"
for
"
; and; or
"
in para (c)(ii) and
"
arrangements; and
"
for
"
arrangements.
"
in para (c)(iii), effective 25 June 2015.
S 20-5(2) amended by No 120 of 2013, s 3 and Sch 1 items 5 and 6, by substituting
"
, BAS agent or tax (financial) adviser
"
for
"
or BAS agent
"
and inserting para (c)(iii), effective 1 July 2014. For transitional provisions, see note under s
20-5(1)
.
S 20-5(2) amended by No 120 of 2013, s 3 and Sch 2 item 2, by inserting para (d), applicable in relation to an application for registration, including renewal of registration, as a registered tax agent, BAS agent or tax (financial) adviser that is made on or after 30 June 2013.
Companies
20-5(3)
A company is eligible for registration as a
*
registered tax agent or BAS agent if the Board is satisfied that:
(a)
each director of the company is a fit and proper person; and
(b)
the company is not under external administration; and
(c)
the company has not been convicted of a
*
serious taxation offence or an offence involving fraud or dishonesty during the previous 5 years; and
(d)
the company has:
(i)
in the case of registration as a
*
registered tax agent
-
a sufficient number of individuals, being registered tax agents, to provide
*
tax agent services to a competent standard and to carry out supervisory arrangements; or
(ii)
in the case of registration as a
*
registered BAS agent
-
a sufficient number of individuals, being registered tax agents or BAS agents, to provide
*
BAS services to a competent standard, and to carry out supervisory arrangements; and
(iii)
(Repealed by No 115 of 2021)
(e)
in the case of registration which is not a renewal
-
the company maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements; and
(f)
in the case of a renewal of registration
-
the company maintains, at the time of applying for registration, professional indemnity insurance that meets the Board
'
s requirements.
Note:
A company in the capacity of trustee of a trust can be registered: see section
70-15
.
History
S 20-5(3) amended by No 115 of 2021, s 3 and Sch 1 item 136(b), by substituting
"
tax agent or BAS agent
"
for
"
tax agent, BAS agent or tax (financial) adviser
"
, effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading.
S 20-5(3) amended by No 115 of 2021, s 3 and Sch 1 items 110 and 111, by substituting
"
arrangements; and
"
for
"
arrangements; or
"
in para (d)(ii) and repealing para (d)(iii), effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading. Para (d)(iii) formerly read:
(iii)
in the case of registration as a *registered tax (financial) adviser
-
taking into account the requirements of paragraphs 912A(1)(d) to (f) of the
Corporations Act 2001
, a sufficient number of individuals, being registered tax agents or registered tax (financial) advisers, to provide *tax (financial) advice services to a competent standard, and to carry out supervisory arrangements; and
S 20-5(3) amended by No 141 of 2020, s 3 and Sch 4 item 104, by substituting para (e) and (f) for para (e), applicable to an application for renewal of registration whether made before, on or after 1 January 2021. Para (e) formerly read:
(e)
the company maintains, or will be able to maintain, professional indemnity insurance that meets the Board
'
s requirements.
S 20-5(3) amended by No 70 of 2015, s 3 and Sch 6 items 49 and 50, by substituting
"
; or
"
for
"
; and; or
"
in para (d)(ii) and
"
arrangements; and
"
for
"
arrangements.
"
in para (d)(iii), effective 25 June 2015.
S 20-5(3) amended by No 120 of 2013, s 3 and Sch 1 items 7 and 8, by substituting
"
, BAS agent or tax (financial) adviser
"
for
"
or BAS agent
"
and inserting para (d)(iii), effective 1 July 2014. For transitional provisions, see note under s
20-5(1)
.
S 20-5(3) amended by No 120 of 2013, s 3 and Sch 2 item 3, by inserting para (e), applicable in relation to an application for registration, including renewal of registration, as a registered tax agent, BAS agent or tax (financial) adviser that is made on or after 30 June 2013.
Special rule about pre-1988 tax agents
20-5(4)
An individual is eligible for registration as a
*
registered tax agent even if the Board is not satisfied that the individual satisfies the requirements mentioned in paragraph
(1)(b)
if:
(a)
the individual was registered as a tax agent or as a nominee for the purposes of Part VIIA of the
Income Tax Assessment Act 1936
(as in force immediately before the commencement of item 7 of Schedule 1 to the
Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009
) at both of the following times:
(i)
immediately before the commencement of this Act;
(ii)
immediately before the commencement of section 39 of the
Taxation Laws Amendment Act (No. 2) 1988
; and
(b)
the individual is otherwise eligible for registration as a registered tax agent.
History
S 20-5(4) amended by No 114 of 2009, s 3 and Sch 1 item 27, by substituting
"
item 7
"
for
"
item 12
"
in para (a), effective 1 March 2010.
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