Tax Agent Services Act 2009
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.
Hide history note
View history noteS 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 … then, the entity ' s registration expires on … 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
(b) if a company is a partner:
(ii) a fit and proper person; and
(i) each director of the company is a fit and proper person; and
(ii) the company is not under external administration; and
(c) the partnership has:
(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
(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
(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.
(iii) (Repealed by No 115 of 2021)
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
(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.
(iii) (Repealed by No 115 of 2021)
Note:
A company in the capacity of trustee of a trust can be registered: see section 70-15 .
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;
(b) the individual is otherwise eligible for registration as a registered tax agent.
(ii) immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No. 2) 1988 ; and
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.
Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited
CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.
The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.
