Australian Taxation Law: Kishore v Tax Practitioners Board Case Analysis

The article provides an analysis of the Kishore v Tax Practitioners Board case under Australian Taxation Law. It discusses the code of professional conduct, breach of contract, and the purpose of the Act. The case highlights the importance of acting with honesty and integrity as a registered tax agent. The article also discusses the sanctions imposed on the tax agent and the purpose of the sanctions. Desklib provides access to solved assignments, essays, and dissertations on Australian Taxation Law.

Running head: AUSTRALIAN TAXATION LAW
Australian Taxation Law
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Introduction:
In the case of “Kishore v Tax Practitioners Board [2016] AATA 764” Mr Kishore
became the registered tax agent on 7th March 2011, at the time of working for his employer,
Charltons CJC Pty Ltd. The company provided accounting and tax agent services for the
clients. In this case, seven preliminary questions originating from the decisions of the board
defined that Mr Kishore considered his behaviour in respect of his departure from Charlton’s
as not the kind of behaviour that the board must unease itself with1. Under the Code of
Professional Conduct specified under Part 3 of the Act, the tax agents are compulsory
required to be acting honestly and with integrity.
Following the hearing of preliminary oral submission, the suitable way of
approaching resolution relating to the dispute between the parties was for the Tribunal to
address a series of threshold questions that was communicated by the parties and accepted by
the tribunal as the central issue to the dispute.
Discussion
According to the “section 2-5 of the Act” it is necessary for the tax agent to make
sure that the tax agent services are provided to people which is in compliance with the correct
standards of the professional and ethical conduct2. This code should be attained by forming a
national board for the registration of tax agents, financial tax advisers and BAS agents. The
code of professional conduct states that the tax agents are required to act with honesty and
with integrity and should comply with the regulations relating to taxation while directing
personal affairs. The operation of code requires the tax agent to act lawfully in the best
1 Glover, John. "Tax agents providing trust deeds and/or advising about trusts: unauthorised legal practice?." Australian Tax
Forum. Vol. 33. No. 3. 2018.
2 Caratti, Silvia, et al. "An analysis of the Tax Practitioners Board outsourcing exposure draft." Tax Specialist 21.3 (2018):
106.

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interest of the party. The Act requires the agent to have a relevant arrangement in place to
manage the conflict of interest which might originate in respect to the activities, they
undertake in capacity of registered tax agent.
The act specially requires the agent to have a legal duty where they should not reveal
any information related to the affairs of the third party without the permission of client3. In
the written submission on the preliminary questions, the taxation board specified that it
remains dependent on the totality of the conduct engaged by Mr Kishore as explained and
characterised in the five judgement by the New South Wales supreme court.
The submission of the court continued by stating that the findings in relation to the
Applicant’s conduct based on which the board and supreme court remain dependent on the
situation of conduct that occurred and the characterisation of conduct. Most importantly, the
defendants have admitted that the majority of the conduct based on which the plaintiff
complained and the dispute among the concerned parties was preliminary directed for
obtaining relief4. Mr Kishore submits by stating that the board must not be permitted to
remain dependent on the matters, factors and situations in detail based on the written
submission of the board to the extent that they do not reflect either the statement of
notification letter or the facts that was stated by the board in the statement of issues, facts and
contentions of the respondents filed to the tribunal.
The decision of the board stated that Mr Kishore had breached the “subsection 30-10
(1)” of the Act by failing to act honestly and with integrity towards his previous employer
Chartons CJC Pty Ltd. The submission of Mr Kishore was rejected since it attempted to
3 James, Simon, Adrian Sawyer, and Ian Wallschutzky. "Tax simplification: A review of initiatives in Australia, New
Zealand and the United Kingdom." eJTR 13 (2015): 280.
4 Barkoczy, Stephen. "Foundations of taxation law 2016." OUP Catalogue (2016).

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confine the Board in the notification letter5. The judgement of board stated that Mr Kishore
breached the contract of employment when he failed to adhere with the lawful restriction of
trade clause and failed to comply with the contractual duty of reliability. There was also the
breach of fiduciary responsibility of faithfulness with his employer and the conduct of Mr
Kishore was characterised by fraudulence, falsification and manoeuvring.
The case evidently points out that Mr Kishore and his co-defendants were indulged in
the strategy of deception in relation to the establishment of new business that effectively
diverted Chartons of numerous business opportunity. The conduct of Mr Kishore and his co-
defendant resulted in considerable loss to Chartons.
The primary submission of Mr Kishore is that “section 30-10 (1) of the Act” is
recited in respect of object clause. According “section 2-5” and the definition of tax agent
service under “section 90-5”, it requires the registered tax agent to act honestly and with the
integrity in relation to provision of tax agent service6. When the disputed conduct is not itself
the provision of tax agent service, then there cannot be any breach in requirement of acting
honestly and with integrity. It can be accepted that the numerous provisions of the act should
be interpreted in order to further the objects of “section 2-5” but this does not imply that
“section 30-10 (1)” must be read in the way Mr Kishore has submitted.
According to the Act, the code of professional conduct regulates the personal and
professional conduct of the registered tax agent, financial advisers and BAS Agent. While
interpreting the operative provision of the Act, the guide of “section 30-10” may be
considered in determining the purpose or the underlying object of the provision7. The guide
5 Sadiq, Kerrie. "Country notes: Tax and Whistle-Blower Protection: Part of a Commitment to Tackling Tax Misconduct in
Australia." Intertax 46.5 (2018): 429-433.
6 Woellner, Robin, et al. "Australian Taxation Law 2016." OUP Catalogue (2016).
7 CCH iKnow | Australian Tax & Accounting. (2019). Retrieved from
https://iknow.cch.com.au/document/atagUio2802750sl806332526/kishore-v-tax-practitioners-board

4AUSTRALIAN TAXATION LAW
may be considered in determining the meaning of provision by taking into the consideration
the Act and its purpose of object of the provision. In noticing that the code regulates the
personal and professional conduct for the registered tax agent, the guide clearly clarifies that
the purpose or the object of “section 30-10 (1)” is to broadly uphold the standards in every
aspects of the person’s conduct as the registered tax agent.
The judgement follows that the extension of “section 30-10 (1)” is not confined in a
manner contended by Mr Kishore. Given that it was confined in order to require honesty and
integrity only in respect to the provision of the tax agent services, then one may anticipate
that the remaining part of subsection of “section 30-10” to be similarly confined8. This would
have the impact of depriving the “subsection (2)”, by any meaning at all.
The code goes beyond the conduct taken in respect of provision of tax agent services
which does not conflicts with the purpose of Act as given under section 2-5. By necessitating
appropriate standards in every aspects of the person’s private and professional behaviour as
the registered tax agent, the code evidently seeks to make sure that the services of tax agent
are provided to the public in compliance with the relevant standards of the professional and
ethical conduct9.
The case highlights that the knowledge of Mr Kishore relating to tax laws and his
competence as the accountant and tax consultant are not the main issue. The central issue is
the conduct in which he indulged at the time of his departure from the Chartons, that amounts
to failure in acting with honesty and integrity10. The conduct in the examination correctly
8 Austlii.edu.au. (2019). Retrieved from http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/271.html
9 JOVER-LEDESMA, G. (2018). PRINCIPLES OF BUSINESS TAXATION 2018. CCH Incorporated.
10 Butler, Daniel, and Joseph Cheung. "Superannuation: Triggering your bring-forward NCCs cap." Taxation in
Australia52.8 (2018): 438.

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points out that Mr Kishore and his co-defendants were characterised by dishonesty,
misrepresentation and intrigue. Mr Kishore and his co-defendants were involved in the
strategy of deception in relation to forming a new business.
The counsel for the Application bought forward an argument that findings were the
characterisation of conduct. The judgement noticed that Mr Kishore’s obligations under the
clause 3.1 of his employment terms were to faithfully serve his employer and use his best
endeavours for promoting the interest as well as welfare of his employer11. The second
judgement also records that in several instances Mr Kishore has admitted to have breached
the obligations. As a matter of fact, the court found that Mr Kishore along with his co-
defendants had, in the lead of their exit from Charltons rendered accounting services to the
persons or entities that were not the current clients of the company. Furthermore, they did not
bill those customers or entities on behalf of their employer and this efficiently diverted
Chartons from the business opportunity.
Importantly, it was the act of determined and deliberate operation to cultivate the
customers that would have else belonged to the Chartons. It is understood that the accountant
may perform the work for the clients at no or reduced costs to build relation with the
customer as Mr Charlton agreed12. However, it is understood for the principal to take such
decision for the benefit of his practice and another for the employee to take the steps for the
benefit of his employer but for himself which was evidently found in several instances.
The case of “Kishore v Tax Practitioners Board [2017]” held that Mr Kishore has
put forward his interest ahead of his employer, despite the fact that he was bound to perform
the opposite, not only based on his employment contract but also by his fiduciary
11 Tax Agent Services Act 2009. (2019). Retrieved from https://www.legislation.gov.au/Details/C2009A00013
12 James, M. (2017). Taxation of Small Businesses. Portland: Spiramus Press.

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responsibility of trustworthiness13. The counsel for the Applicant has submitted that the case
in supreme court against the Mr Kishore as well as his colleagues was related to the business
case with damages awarded relating to breaching the contract obligations. As per the
“section 30-15 (2) of the Act” it requires the tax agent to comply with the available sections.
In the event of failure, the board or the tribunal upon review might caution the tax agent with
the written consent14. The act may provide the tax agent with the order under “section 30-20
of the Act” that would require them to complete with the course of education or training in
order to restrain the services of tax agent.
In deciding upon the correctness of the sanction placed, the imposition of action is not
for the purpose of punishing the agent but to protect the public and to maintain the adequate
standard inside the industry regulations15. A sanction might serve the purpose of personal
deterrence or the general deterrence in order to promote compliance.
The situations that has originated in the case of Mr Kishore is not likely to be repeated
again in future. The decision of the board however cannot be said as entirely correct. It
should be borne in mind regarding the commercial reality of what has happened is that the
principle of plaintiff in this case was approaching an end of his career while defendants were
clearly not content with the treatment which they were receiving from Mr Charlton and
wanted to start once again. They must not have breached their covenants but one should
understand the commercial imperative that resulted in situation that unfolded recently.
Another important point is that none of the clients of Charlton and no client of
Intuitive suffered any kind of financial losses based on the consequence of Mr Kishore’s
13 SMITH, E. (2017). FEDERAL TAXATION BASIC PRINCIPLES 2018.
14 Legislation | TPB. (2019). Retrieved from https://www.tpb.gov.au/legislation
15 Sadiq, K., Coleman, C., Hanegbi, R., Jogarajan, S., Krever, R., & Obst, W. et al. Principles of taxation law 2018.

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conduct. Mr Kishore has the flawless professional history. Weighing to certain extent against
the Mr Kishore, are his attempt in the two letters to the board so that he can downplay his
involvement in the overall conduct towards Charltons and to contest the adverse factual
findings which was made against him16. There is only little to justify that Mr Kishore taking
any of the position however, he has explained in his oral evidence that he was under the
significant stress not only due to the lawful proceedings that was taken against him but also
from the demise of his brother.
Conclusion:
On a conclusive note, it was appropriate for the board to impose sanction but it would
have been better if a written caution under “section 30-15 (2) (a)” of the act was given to Mr
Kishore. The receipt of such caution would have altogether with the ordeal of having endured
the review proceeding would serve as the adequate reminder to Mr Kishore regarding his
obligation under the code.
16 Kang, Minjo. "Tax Practitioner Compliance." Taxes and Taxation Trends. IntechOpen, 2018.

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References:
Austlii.edu.au. (2019). Retrieved from
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/271.html
Barkoczy, Stephen. "Foundations of taxation law 2016." OUP Catalogue (2016).
Butler, Daniel, and Joseph Cheung. "Superannuation: Triggering your bring-forward NCCs
cap." Taxation in Australia52.8 (2018): 438.
Caratti, Silvia, et al. "An analysis of the Tax Practitioners Board outsourcing exposure
draft." Tax Specialist 21.3 (2018): 106.
CCH iKnow | Australian Tax & Accounting. (2019). Retrieved from
https://iknow.cch.com.au/document/atagUio2802750sl806332526/kishore-v-tax-
practitioners-board
Glover, John. "Tax agents providing trust deeds and/or advising about trusts: unauthorised
legal practice?." Australian Tax Forum. Vol. 33. No. 3. 2018.
James, M. (2017). Taxation of Small Businesses. Portland: Spiramus Press.
James, Simon, Adrian Sawyer, and Ian Wallschutzky. "Tax simplification: A review of
initiatives in Australia, New Zealand and the United Kingdom." eJTR 13 (2015): 280.
JOVER-LEDESMA, G. (2018). PRINCIPLES OF BUSINESS TAXATION 2018. CCH
Incorporated.
Kang, Minjo. "Tax Practitioner Compliance." Taxes and Taxation Trends. IntechOpen, 2018.
Legislation | TPB. (2019). Retrieved from https://www.tpb.gov.au/legislation
Sadiq, K., Coleman, C., Hanegbi, R., Jogarajan, S., Krever, R., & Obst, W. et al. Principles
of taxation law 2018.

9AUSTRALIAN TAXATION LAW
Sadiq, Kerrie. "Country notes: Tax and Whistle-Blower Protection: Part of a Commitment to
Tackling Tax Misconduct in Australia." Intertax 46.5 (2018): 429-433.
SMITH, E. (2017). FEDERAL TAXATION BASIC PRINCIPLES 2018.
Tax Agent Services Act 2009. (2019). Retrieved from
https://www.legislation.gov.au/Details/C2009A00013
Woellner, Robin, et al. "Australian Taxation Law 2016." OUP Catalogue (2016).