Tax Agent Services Act 2009

PART 5 - ENFORCEMENT  

Division 52 - Infringement notices and enforceable undertakings  

Subdivision 52-A - Infringement notices  

SECTION 52-5   Infringement notices  
Provisions subject to an infringement notice

52-5(1)    
The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

(a)    subsections 50-5(1) and (2) (providing tax agent services if unregistered);

(b)    subsections 50-10(1) and (2) (advertising tax agent services if unregistered);

(c)    section 50-15 (representing that you are a registered tax agent or BAS agent if unregistered);

(d)    section 50-17 (providing tax (financial) advice services if not registered);

(e)    section 50-18 (advertising tax (financial) advice services if not registered or qualified);

(f)    subsections 50-30(1) , (2) , (3) and (4) (signing of declarations etc.).

52-5(2)    
Section 50-31 (failure to comply with * Code of Professional Conduct) is also subject to an infringement notice under Part 5 of the Regulatory Powers Act if a contravention of it is:

(a)    constituted by a failure to comply with any of the following:

(i) subsection 30-10(2) (compliance with taxation laws in conduct of personal affairs);

(ii) subsection 30-10(3) (accounting to client for money or property held on trust);

(iii) subsection 30-10(6) (disclosure of client information);

(iv) subsection 30-10(8) (maintaining knowledge and skills);

(v) subsection 30-10(12) (advising client of rights and obligations);

(vi) subsection 30-10(13) (maintaining professional indemnity insurance);

(vii) subsection 30-10(14) (responding to Board requests and directions); or

(b)    constituted by a failure to comply with subsection 30-10(17) (failure to comply with obligation determined under section 30-12 ) in relation to the following obligations determined under section 30-12 :

(i) an obligation to maintain confidentiality in dealings with government;

(ii) an obligation to keep proper client records;

(iii) an obligation to keep clients informed; or

(c)    constituted by a failure to comply with a provision of the Code of Professional Conduct that is prescribed by the regulations.

Note:

Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

52-5(3)    
For the purposes of Part 5 of the Regulatory Powers Act:

(a)    a * Board member is an infringement officer in relation to the provisions mentioned in subsections (1) and (2) ; and

(b)    a person authorised under subsection (4) is an infringement officer in relation to the provisions mentioned in subsection (1) .

52-5(4)    
The * Chair may, by writing, authorise a person who is an SES employee, or an acting SES employee, whose services are made available to the Board by the Commissioner to be an infringement officer in relation to the civil penalty provisions mentioned in subsection (1) .

Note:

The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 .

Relevant chief executive

52-5(5)    
For the purposes of Part 5 of the Regulatory Powers Act, the * Chair is the relevant chief executive in relation to the provisions mentioned in subsections (1) and (2) .

52-5(6)    
The relevant chief executive may, in writing, delegate to a * Board member the relevant chief executive ' s powers and functions:

(a)    under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) ; and

(b)    under section 105 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (2) .

52-5(7)    
The relevant chief executive may delegate to a person authorised under subsection (4) a power or function under section 105 of the Regulatory Powers Act in relation to the provision mentioned in subsection (1) or (2) .

52-5(8)    
A person who does either or both of the following must comply with any directions of the * Board or a * committee:

(a)    issues an infringement notice in relation to a provision mentioned in subsection (2) ;

(b)    exercises powers or performs functions under a delegation under subsection (6) or (7) .

Infringement notices for provisions mentioned in subsection (2)

52-5(9)    
An infringement officer must not issue an infringement notice under Part 5 of the Regulatory Powers Act to a person in relation to a provision mentioned in subsection (2) unless:

(a)    the * Board is satisfied, after conducting an investigation under Subdivision 60-E , that the person has failed to comply with the * Code of Professional Conduct; and

(b)    the failure relates to the provision for which the infringement notice will be issued.

Time limit for giving an infringement notice

52-5(10)    
Despite subsection 103(2) of the Regulatory Powers Act, an infringement notice must be given under that subsection within 2 years (not 12 months) of the alleged contravention of a provision mentioned in paragraph (1)(a) , (b) , (c) , (d) or (e) .