Tax Agent Services (Code of Professional Conduct) Determination 2024
Reference: LI 2024/20
Document type: Legislative Instrument
Enabling act: Tax Agent Services Act 2009
Date of issue: 1 July 2024
Signatory: Stephen Jones Assistant Treasurer Minister for Financial Services
Registration number: F2024C00793
Registration date: 11 September 2024

I, Stephen Jones, Assistant Treasurer and Minister for Financial Services, make the following determination.

1 Name: This instrument is the Tax Agent Services (Code of Professional Conduct) Determination 2024. | 2 Commencement: (1) Each provision of instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this instrument 1 August 2024. Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument. Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument. (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. | 3 Authority: This instrument is made under the Tax Agent Services Act 2009. | 4 Definitions: Note: Expressions have the same meaning in this instrument as in the Tax Agent Services Act 2009 as in force from time to time—see paragraph 13(1)(b) of the Legislation Act 2003. In this instrument: the Act means the Tax Agent Services Act 2009. Division 1—Additional obligations of general application Subdivision A—Preliminary 5 Additional obligations relating to the professional and ethical conduct of registered tax agents and BAS agents Under section 30-12 of the Act, the obligations relating to professional and ethical conduct of registered tax agents and BAS agents set out in this Part are determined for the purposes of subsection 30-10(17) of the Act. Note: Section 30-10 of the Act sets out the Code of Professional Conduct applying to registered tax agents and BAS agents. The Minister may determine further obligations under the Code which registered tax agents and BAS agents must comply with. This instrument sets out those further obligations. Subdivision B—Honesty and integrity | 10 Upholding and promoting the ethical standards of the tax profession: Independently, and in cooperation with other registered tax agents and BAS agents, you must: (a) uphold and promote the Code of Professional Conduct; and (b) not engage in any conduct that you know, or ought reasonably to know, may: (i) undermine public trust and confidence in the integrity of the tax profession (including conduct that discredits the tax profession or brings the tax profession into disrepute); or (ii) undermine public trust and confidence in the integrity of the tax system; and (c) not engage in any conduct that you know, or ought reasonably to know, may undermine the collective work of registered tax agents and BAS agents, as a tax profession, to uphold and promote: (i) the Code of Professional Conduct; and (ii) public trust and confidence in the integrity of the tax profession and tax system; and (iii) each member of the profession being held accountable for their individual conduct. (a) uphold and promote the Code of Professional Conduct; and (b) not engage in any conduct that you know, or ought reasonably to know, may: (i) undermine public trust and confidence in the integrity of the tax profession (including conduct that discredits the tax profession or brings the tax profession into disrepute); or (ii) undermine public trust and confidence in the integrity of the tax system; and (c) not engage in any conduct that you know, or ought reasonably to know, may undermine the collective work of registered tax agents and BAS agents, as a tax profession, to uphold and promote: (i) the Code of Professional Conduct; and (ii) public trust and confidence in the integrity of the tax profession and tax system; and (iii) each member of the profession being held accountable for their individual conduct. (i) undermine public trust and confidence in the integrity of the tax profession (including conduct that discredits the tax profession or brings the tax profession into disrepute); or (ii) undermine public trust and confidence in the integrity of the tax system; and (i) the Code of Professional Conduct; and (ii) public trust and confidence in the integrity of the tax profession and tax system; and (iii) each member of the profession being held accountable for their individual conduct. Note: A registered tax agent or BAS agent has an obligation to notify the Board of significant breaches of the Code—see Subdivision 30-C of the Act. | 15 False or misleading statements: Statements made to the Board or the Commissioner (1) You must not: (a) make a statement to the Board or the Commissioner; or (b) prepare a statement that you know, or ought reasonably to know, is likely to be made to the Board or Commissioner by an entity; or (c) permit or direct someone else to make or prepare such a statement; (a) make a statement to the Board or the Commissioner; or (b) prepare a statement that you know, or ought reasonably to know, is likely to be made to the Board or Commissioner by an entity; or (c) permit or direct someone else to make or prepare such a statement; that you know, or ought reasonably to know, is false, incorrect or misleading in a material particular, or omits any matter or thing without which the statement is misleading in a material respect, in your capacity as a registered tax agent or BAS agent or in any other capacity. Note: For further obligations relating to false or misleading statements to the Commissioner see section 50-20 of the Act. (2) As soon as possible after you become aware that a statement given to the Board or Commissioner was false, incorrect or misleading in a material particular at the time it was made, or omitted any matter or thing without which the statement is misleading in a material respect, you must take all reasonable steps to: (a) where you made the statement (or permitted or directed someone else to make the statement)—correct the statement; and (b) where you prepared the statement (or permitted or directed someone else to prepare the statement)—advise the maker of the statement that the statement should be corrected; and (c) where you prepared the statement and the maker does not correct the statement within a reasonable time—notify the Board or Commissioner that the statement is false, incorrect or misleading in a material particular, or omitted some matter or thing without which the statement is misleading in a material respect. (a) where you made the statement (or permitted or directed someone else to make the statement)—correct the statement; and (b) where you prepared the statement (or permitted or directed someone else to prepare the statement)—advise the maker of the statement that the statement should be corrected; and (c) where you prepared the statement and the maker does not correct the statement within a reasonable time—notify the Board or Commissioner that the statement is false, incorrect or misleading in a material particular, or omitted some matter or thing without which the statement is misleading in a material respect. Statements made to other Australian government agencies (3) You must not: (a) make a statement to an Australian government agency (other than the Board or the Commissioner); or (b) prepare a statement that you know, or ought reasonably to know, is likely to be made to an Australian government agency (other than the Board or the Commissioner) by an entity; or (c) permit or direct someone else to make or prepare such a statement; (a) make a statement to an Australian government agency (other than the Board or the Commissioner); or (b) prepare a statement that you know, or ought reasonably to know, is likely to be made to an Australian government agency (other than the Board or the Commissioner) by an entity; or (c) permit or direct someone else to make or prepare such a statement; that you know, or ought reasonably to know, is false, incorrect or misleading in a material particular, or omits any matter or thing without which the statement is misleading in a material respect, in your capacity as a registered tax agent or BAS agent or in any other capacity. Subdivision C—Independence | 20 Conflicts of interest in dealings with government: In relation to any activities you undertake for an Australian government agency in a professional capacity, you must: (a) take reasonable steps to identify and document any material conflicts of interest (real or apparent) in connection with an activity undertaken for the agency; and (b) disclose the details of any material conflict of interest (real or apparent) that arises in connection with an activity undertaken for the agency to the agency as soon as you become aware of the conflict; and (c) take reasonable steps to manage, mitigate, and where appropriate and possible, avoid, any material conflict of interest (real or apparent) that arises in connection with an activity undertaken for the agency (except to the extent that the agency has expressly agreed otherwise). (a) take reasonable steps to identify and document any material conflicts of interest (real or apparent) in connection with an activity undertaken for the agency; and (b) disclose the details of any material conflict of interest (real or apparent) that arises in connection with an activity undertaken for the agency to the agency as soon as you become aware of the conflict; and (c) take reasonable steps to manage, mitigate, and where appropriate and possible, avoid, any material conflict of interest (real or apparent) that arises in connection with an activity undertaken for the agency (except to the extent that the agency has expressly agreed otherwise). Subdivision D—Confidentiality | 25 Maintaining confidentiality in dealings with government: Disclosure (1) Unless you have a legal duty to do so, you must not disclose any information you have received, directly or indirectly, from an Australian government agency, in connection with any activities you undertake with the agency in a professional capacity, except to the extent that all of the following apply: (a) it is reasonable to conclude that the information received from the agency was authorised by that agency for further disclosure; and (b) any further disclosure of the information is done consistently with the agency's authorisation. (a) it is reasonable to conclude that the information received from the agency was authorised by that agency for further disclosure; and (b) any further disclosure of the information is done consistently with the agency's authorisation. Note: This subsection would not prohibit disclosure information released by an agency to the general public as it would be reasonable to conclude that such information was authorised for further disclosure. However, further disclosure of that information may be subject to conditions that are expressly imposed by an agency (such as limits on how the information is to be reproduced if attributed to the agency). Use for personal advantage (2) You must not use any information you have received, directly or indirectly, from an Australian government agency, in connection with any activities you undertake with the agency in a professional capacity, for your personal advantage, or for the advantage of an associate, employee, employer or client of yours, except to the extent that all of the following apply: (a) it is reasonable to conclude that the information received from the agency was authorised by that agency to be used in a way that may provide for such an advantage; and (b) any further use of the information was done consistently with the agency's authorisation. (a) it is reasonable to conclude that the information received from the agency was authorised by that agency to be used in a way that may provide for such an advantage; and (b) any further use of the information was done consistently with the agency's authorisation. Subdivision E—Competence | 30 Keeping of proper client records: (1) You must keep records that correctly record the tax agent services you have provided, or that are provided on your behalf, to each of your clients, including former clients. (2) The records must: (a) be in English, or readily accessible and easily convertible into English; and (b) be retained for at least 5 years after the service has been provided; and (c) show the nature, scope and outcome of the tax agent service provided; and (d) include all relevant information considered in the provision of the tax agent service (including information exchanged with the client, advice provided to the client, and for more complex matters: the relevant facts, assumptions and reasoning underpinning any advice provided to the client). (a) be in English, or readily accessible and easily convertible into English; and (b) be retained for at least 5 years after the service has been provided; and (c) show the nature, scope and outcome of the tax agent service provided; and (d) include all relevant information considered in the provision of the tax agent service (including information exchanged with the client, advice provided to the client, and for more complex matters: the relevant facts, assumptions and reasoning underpinning any advice provided to the client). | 35 Ensuring tax agent services provided on your behalf are provided competently: (1) You must ensure that each entity providing tax agent services on your behalf maintains knowledge and skills that are relevant to the tax agent services the entity is providing. (2) You must ensure that each entity providing tax agent services on your behalf is appropriately supervised, having regard to knowledge and skills of the entity, the tax agent services being provided by the entity, and your system of quality management. Subdivision F—Other responsibilities | 40 Quality management systems: (1) You must establish and maintain a system of quality management, in relation to the provision of tax agent services by you, or on your behalf, which is designed to provide you with reasonable confidence that you are complying with the Code of Professional Conduct. (2) You must document and enforce the policies and procedures of your system of quality management. Note: A system of quality management includes policies and procedures relating to governance and leadership, monitoring of performance, adherence to the Code of Professional Conduct, client engagement, proper keeping of records, protecting confidentiality of information, the management of conflicts of interest, and the recruitment, training and management of employees. | 45 Keeping your clients informed of all relevant matters: Obligation (1) You must advise all current and prospective clients, in the manner and form set out in subsection (2), of all of the following: (a) any matter that could significantly influence a decision of a client to engage you, or to continue to engage you, to provide a tax agent service; (b) that the Board maintains a register of tax agents and BAS agents and how they can access and search the register; (c) how they can make a complaint about a tax agent service you have provided, including the complaints process of the Board. (a) any matter that could significantly influence a decision of a client to engage you, or to continue to engage you, to provide a tax agent service; (b) that the Board maintains a register of tax agents and BAS agents and how they can access and search the register; (c) how they can make a complaint about a tax agent service you have provided, including the complaints process of the Board. Manner and form requirements (2) Where you are required to advise clients of information covered by subsection (1), you must do so: (a) by giving the information mentioned in a paragraph in subsection (1), in writing, to current and prospective clients in a prominent, clear and unambiguous way; and (b) for information mentioned in paragraph (1)(a): (i) if a client makes inquiries to engage or re-engage you to provide tax agent services, and you are aware of the matter at that time—at the time of the inquiry; or (ii) otherwise—within 30 days of becoming aware of the matter; and (c) for information covered by either paragraph (1)(b) or (1)(c)—upon engagement or re-engagement of a client (as the case requires), or upon receiving a relevant request. (a) by giving the information mentioned in a paragraph in subsection (1), in writing, to current and prospective clients in a prominent, clear and unambiguous way; and (b) for information mentioned in paragraph (1)(a): (i) if a client makes inquiries to engage or re-engage you to provide tax agent services, and you are aware of the matter at that time—at the time of the inquiry; or (ii) otherwise—within 30 days of becoming aware of the matter; and (c) for information covered by either paragraph (1)(b) or (1)(c)—upon engagement or re-engagement of a client (as the case requires), or upon receiving a relevant request. (i) if a client makes inquiries to engage or re-engage you to provide tax agent services, and you are aware of the matter at that time—at the time of the inquiry; or (ii) otherwise—within 30 days of becoming aware of the matter; and Example Whilst not limiting the ways in which a registered tax agent or BAS agent could satisfy subsection (2), an agent who does all of the following, in the form and within the times mentioned in subsection (2), will have given information to all their current and prospective clients as required under this section: (a) the agent publishes the information on a publicly accessible website that they use to promote the tax agent services they offer, and (b) the agent includes the information in letters of engagement or re-engagement (as case the requires) given to each of their clients. (a) the agent publishes the information on a publicly accessible website that they use to promote the tax agent services they offer, and (b) the agent includes the information in letters of engagement or re-engagement (as case the requires) given to each of their clients. Division 1—Application | 100 Application—instrument as originally made: Application (1) Except as otherwise provided in this instrument, the obligations included in this instrument on the day it commences (the commencement day ), apply on or after: (a) in relation to a registered tax agent or BAS agent, that has 100 employees or less as at 31 July 2024—1 July 2025; (b) otherwise—1 January 2025. (a) in relation to a registered tax agent or BAS agent, that has 100 employees or less as at 31 July 2024—1 July 2025; (b) otherwise—1 January 2025. Employee count to be undertaken at the practice or firm level (2) For the purposes of paragraph (1)(a), where a tax agent or BAS agent is an employee or member of a partnership or company that is also a registered tax or BAS agent, the employees of the partnership or company (or any other entity connected with, or an affiliate of, the partnership or company) are to be counted in determining how many employees a registered tax agent or BAS agent has. (3) If a registered tax agent or BAS agent stops being an employee or member of a partnership or company that is also a registered tax or BAS agent ( old firm ), and starts being an employee or member of another partnership or company that is also a registered tax or BAS agent ( new firm ) during the period starting on the commencement day and ending on 30 June 2025, then whether paragraph (1)(a) or (1)(b) applies to a tax agent or BAS at a particular time is to be determined based on whether they were an employee or member of the old firm or new firm at that time. Record-keeping and false or misleading statements (4) To avoid doubt, section 15 (about false or misleading statements) applies to statements made, and section 30 (about the keeping of proper client records) applies to tax agent services provided, on or after the day the sections begin to apply to the registered tax agent or BAS agent under subsection (1). Division 2—Transitional | 151 Transitional—instrument as originally made: Keeping clients informed of all relevant matters Despite section 100, section 45 applies in relation to matters that have arisen on or after 1 July 2022. However, clients should be advised of a matter that arose on or before the commencement day by no later than 30 days after section 45 begins to apply to the registered tax agent or BAS agent under subsection 100(1), if section 45 still applies to that matter at that time. Name Registration Commencement Application, saving and transitional provisions Tax Agent Services (Code of Professional Conduct) Determination 2024 2 July 2024 ( F2024L00849 ) 1 August 2024 — Tax Agent Services (Code of Professional Conduct) Amendment (Measures No. 1) Determination 2024 9 September 2024 ( F2024L01118 ) 10 September 2024 — Provision affected How affected S 100 rs F2024L01118 S 151 ad F2024L01118