Folio 5 of 6 · Complaints
5Complaints about a tax practitioner
The Tax Practitioners Board takes complaints about registered tax and BAS agents, and about anyone who, without being registered, advertises or provides tax agent, BAS or tax (financial) advice services for a fee. Complaints must be in writing, through its online form, and the TPB encourages trying to resolve the issue with the practitioner first.
Some problems belong elsewhere: the TPB lists fee disputes, documents held back over unpaid fees, and penalties imposed by the ATO among the complaints it may not be able to act on.
General information, not legal or tax advice. The TPB’s Complaints page is the place to check what it can and cannot act on, and the ATO’s safe harbour page explains penalty relief.
5.1The process, step by step
- Raise it with the practitionerThe TPB encourages trying to resolve the issue directly first, wherever possible, and suggests doing it in writing so there is a record. If a complaint follows, it will ask what has already been done to resolve it.
- Gather what the form asks forThe online form cannot be saved and finished later. It asks for the practitioner’s name, address and registration number if registered, what they were engaged or paid to do, what they did or did not do, matters relating to their conduct, information given to them that was not acted on or was acted on incorrectly, what was done to resolve it and what they said, the consequences, the outcome sought, and any evidence that can be attached.
- Lodge it in writingAll complaints go through the online form. A complaint can be anonymous, but the TPB will not progress it without enough information and evidence.
- Review and risk assessmentAn acknowledgement email follows if an email address was given. Every complaint is reviewed and risk assessed, but the TPB says not every complainant will be contacted or told the outcome.
- Enquiries, and perhaps an investigationIf it is a complaint the TPB can act on, it makes further enquiries, which may include contacting the complainant for more information.
Every step above is from the TPB’s complaints page.
5.2What the TPB can investigate
Under section 60-95 of the Tax Agent Services Act 2009, the TPB can formally investigate applications for registration, breaches of the Code of Professional Conduct, statements to the Commissioner of Taxation that are false or misleading, offering or providing services for a fee without being registered, and any other conduct that may breach the Act.
If it finds a breach of the Code, its sanctions range from a written caution, through orders such as training or supervision, to suspending or terminating a registration. After a termination it can set a period of up to five years in which the person may not reapply, and for serious misconduct it can ask the Federal Court for a civil penalty or an injunction. What the Code requires is set out in The Code of Professional Conduct.
5.3Where each kind of problem goes
The TPB says a large share of the complaints it receives are ones it cannot resolve or address directly. Drawing on its page, the main kinds sort like this.
| The problem | What the TPB says | Where it points |
|---|---|---|
| Conduct: care, honesty, competence, confidentiality | Breaches of the Code are within its power to investigate. | The TPB’s online complaint form |
| Someone charging for tax or BAS work while unregistered | It takes complaints about unregistered preparers who advertise or provide these services for a fee. | The TPB’s online complaint form |
| A fee dispute only | It cannot always help; these are often commercial matters to resolve under the agreement with the practitioner. A fee dispute tied to inappropriate conduct may be different. | Consumer affairs or fair trading in your state or territory |
| Documents held until fees are paid | A practitioner may exercise a “right of lien” over certain documents until the contract is finalised, such as by fees being paid. | The TPB’s guidance on liens, linked from its complaints page |
| A penalty or interest charge from the ATO | It cannot order a practitioner to pay penalties, interest or charges the ATO has imposed on you. | The ATO, which administers safe harbour |
| Help from someone who was not acting as a tax agent | In one of its examples, a refund paid into an acquaintance’s account, the TPB pointed to other authorities. | Consumer affairs or the police, or legal action |
5.4Safe harbour, when the agent was at fault
Safe harbour is the ATO’s rule that can protect a client of a registered tax or BAS agent from certain administrative penalties. The ATO says a client will not be liable to those penalties if they gave the agent all the relevant tax information and the agent either failed to take reasonable care and made a false or misleading statement that led to a shortfall, or failed to lodge a document by its due date.
The limits matter. Safe harbour does not apply where the penalty arises from the agent’s recklessness or intentional disregard of the tax law, or to other administrative penalties, including where tax avoidance schemes are involved. “All relevant tax information” includes meeting the deadlines the agent sets for providing it, and in the ATO’s words, “The taxpayer carries the burden of proof to establish that they provided all relevant information as required.” That is one reason records of what was handed over, and when, matter; Keeping records when someone else does the books takes it further.
When safe harbour is granted, the ATO may refer the matter to the TPB to consider whether the agent has breached the Code.
5.5If the practitioner belongs to a professional body
A practitioner who is a member of a professional accounting body is also answerable to that body under its own rules, through its own complaints process. Those processes, and what each body says they cannot do, are compared in “Accountant” is not a registration.
5.6If the TPB’s handling falls short
The TPB lists four options for someone unhappy with how it dealt with their complaint:
- an independent review of the case, asked for through the TPB’s general enquiry form with reasons why the decision making was deficient;
- the Inspector-General of Taxation and Taxation Ombudsman (Tax Ombudsman);
- the Commonwealth Privacy Commissioner, about the handling of personal information;
- an application for compensation, where the TPB’s actions give rise to a legal liability or its defective administration caused a financial loss.
Balance carried down
Conduct goes to the TPB, in writing, after trying the practitioner first. Fee-only disputes go to the state or territory consumer regulator, penalty relief goes through the ATO’s safe harbour, and a member’s professional body has its own process alongside.