SA2—Guidelines for registering self assessors

The self assessor guidelines represent the published view of the Commissioner of State Revenue (the Commissioner) in relation to the management of the transfer duty self assessor framework.

What this document is about

  1. The purpose of this document is to:
    1. provide transparency for prospective applicants about how applications for registration as a self assessor under the Duties Act 2001 (Duties Act) are considered
    2. facilitate consistency in decisions about applications for registration by the Commissioner’s delegates.
  2. This document applies to an applicant for registration as a self assessor:
    1. under Chapter 12, Part 2 of the Duties Act, on the basis that person is a party to particular instruments or transactions (a party self assessor)
    2. under Chapter 12, Part 3 of the Duties Act, on the basis that person is an agent for parties to certain dutiable instruments or transactions (an agent self assessor).
  3. It does not apply to an applicant for registration under Chapter 12, Part 1 of the Duties Act.

Registration of self assessors

  1. A person1 may apply to the Commissioner to be registered as a party self assessor or an agent self assessor.2 The Commissioner must approve or refuse the application.3
  2. If the Commissioner approves the application, the Commissioner must register the person as a self assessor for duty on the instruments or transactions mentioned in the application.4 On registration of a person as a self assessor, the Commissioner must give notice to the person of the registration.5
  3. If the Commissioner refuses the application, the Commissioner must give the applicant an information notice for the decision.6
  4. The Commissioner may also, by notice given to a person, register the person as a party self assessor or an agent self assessor.7 The Commissioner may do this without an application from the person

Considerations

  1. The Commissioner will consider the following matters in deciding whether to approve or refuse an application.

Threshold

  1. An applicant for registration as a party self assessor must be a person who is, or will become, a party to particular instruments or transactions.8
  2. An applicant for registration as an agent self assessor must be a person who, in the ordinary course of business, acts as an agent for parties to instruments or transactions on which duty is imposed.9

Conduct

  1. The Duties Act10 sets out various grounds for the suspension or cancellation of a self assessor’s registration, including grounds around conduct.
  2. These same conduct considerations may be taken into account by the Commissioner when deciding an application for registration, noting that the following grounds (c), (d), (e) and (f) are only relevant if the applicant was previously registered as a self assessor:
    1. The applicant has been convicted of an offence against the Duties Act, the Taxation Administration Act 2001 (Administration Act) or the Stamp Act 1894 (Stamp Act). Consideration may also be given to the conduct of a representative of the applicant such as a director, shareholder or employee.
    2. The applicant has contravened a provision of the Duties Act or the Stamp Act (being a provision a contravention of which is not an offence). Consideration may also be given to the conduct of a representative of the applicant such as a director, shareholder or employee.
    3. The applicant was previously registered because of a materially false or misleading representation or declaration.
    4. The applicant was previously given a notice under section 488(2) of the Duties Act to pay a penalty amount and has failed to pay:
      1. the penalty amount by the date for payment stated in the notice
      2. an instalment by the date it was required to be paid under an instalment arrangement.
    5. The applicant was previously an agent self assessor and failed to give notice to the Commissioner (as required under section 470(3) of the Duties Act) of ceasing to carry on the business in Queensland.
    6. If each of the following apply:
      1. The applicant has previously endorsed an electronic lodgement network (ELN) transaction document11 on the basis that section 22(2A) of the Duties Act applied to the ELN transfer.
      2. The ELN transaction document was registered under the Land Title Act 1994.
      3. The commitment amount for the payment made for the relevant transfer agreement was not paid to the Commissioner in full as required.
    7. The Commissioner reasonably believes that, having regard to the applicant’s conduct, the applicant’s registration poses an unacceptable risk that they will not comply with an obligation under the Duties Act or the Administration Act.
  3. The Commissioner will also consider the cancellation of an applicant’s prior registration as a self assessor when deciding to approve or refuse an application.

Suitability

  1. A self assessor performs a statutory function under the Duties Act. The self assessor is the subject of statutory obligations, and performs various functions including the lodgement of transaction statements that form the basis of assessments of tax and the collection of tax-law liability amounts.
  2. Each application for registration will be considered on a case-by-case basis; however, where persons can demonstrate they have appropriate qualifications, experience, internal systems and regulation, these circumstances are a consideration supporting registration. Examples of evidence required to consider an applicant as suitable include:
    1. a demonstrated ability to interpret and apply the tax laws as they apply to self assessment; for example, a statement by the applicant (or authorised representative of the applicant) identifying their professional qualifications and/or their relevant skills and experience
    2. documented business processes to ensure self assessment obligations are met; for example, copies of internal business process maps, procedure manuals and/or equivalent process documents
    3. checklists of self assessment requirements for inclusion as file notes
    4. employee agreements incorporating undertakings relating to self assessment around
      1. ethical decision-making
      2. reporting or admitting wrongdoing
      3. conflict of interest disclosures
      4. exercising lawful powers and authority with care and for which the powers were granted
    5. oversight, including professional standards and disciplinary mechanisms, by a relevant professional body (e.g. Queensland Law Society, Tax Practitioners Board)
    6. insurance (in favour of taxpayers, e.g. coverage by the Queensland Law Society Fidelity Guarantee Fund).
  3. The Commissioner may also take other relevant factors into account when considering suitability.

Example—Legal practitioners

In the case of an applicant who has been admitted to the Supreme Court of Queensland, it is noted that the court will only admit a person if it is satisfied they are:

  • eligible for admission to the legal profession under the Legal Profession Act 2007 (Legal Profession Act)12
    and
  • a fit and proper person to be admitted to the legal profession under the Legal Profession Act.

Further, once admitted, a lawyer requires a practising certificate to be a legal practitioner under the Legal Profession Act.

Chapter 4 of the Legal Profession Act sets out processes to:

  • provide for the discipline of the legal profession
  • promote and enforce the professional standards, competence and honesty of the legal profession
  • provide a means of redress for complaints about lawyers
  • protect members of the public from unlawful operators.13

Accordingly, where an applicant for registration as a self assessor holds a valid practising certificate, the Commissioner will recognise that as a factor that supports approval of their application for registration.

Opportunity to respond

  1. Where an adverse inference is drawn from information or evidence obtained by the Commissioner, the Commissioner will provide the applicant with an opportunity to respond to that information before making a decision about the application.

Notices

Approval of registration

  1. If the Commissioner approves a person’s application for registration as a self assessor, the Commissioner must give notice to the person of the registration.14 The notice must state:
    1. the date of registration
    2. the instruments and transactions to which the registration relates, and which transaction statements are required or permitted to be lodged
    3. the dates for lodging transaction statements by the self assessor and the dates for paying duty
    4. the documents required to accompany the transaction statements
    5. the records required to be kept relating to the instruments and transactions
    6. any endorsements to be made on the instruments or ELN transfer documents
    7. the types of reassessment the self assessor is required or permitted to make
    8. whether the self assessor is permitted to remit all or part of unpaid tax interest or penalty tax
    9. the self assessor’s client number.
  2. However, a matter may be stated in a document issued by the Commissioner and accompanying the notice—instead of being stated in the notice. A matter stated in that document is taken to have been stated in the notice.15 The Commissioner states these matters in the SA1—Instructions for registered self assessors.

Refusal of registration

  1. If the Commissioner refuses a person’s application for registration, the Commissioner must give the applicant an information notice for the decision.16
  2. The information notice will identify the:
    1. decision that the Commissioner has refused the application for registration as a self assessor
    2. decision-maker, including their name and designation
    3. decision-making process—that is, the main steps taken in making the decision
    4. facts and findings on which the decision is based
    5. reasons for the refusal, including how grounds favouring registration were weighed against grounds not favouring registration and the outcomes of any representations considered
    6. review rights17 available if the applicant disagrees with the decision, including how to apply for review and the time limits.18

Mark Jackson
Commissioner of State Revenue
Date: 7 October 2022

Footnotes

  1. A person includes an individual or a corporation under sections 32D and 36 and Schedule 1 of the Acts Interpretation Act 1954.
  2. Sections 441 and 448 of the Duties Act
  3. Sections 442 and 449 of the Duties Act
  4. Sections 443 and 450 of the Duties Act
  5. Sections 445(1) and 452(1) of the Duties Act
  6. Sections 446 and 453 of the Duties Act
  7. Sections 444 and 451 of the Duties Act
  8. Section 441(1) of the Duties Act
  9. Section 448(1) of the Duties Act
  10. Section 465 of the Duties Act
  11. See definition of ‘ELN transaction document’ in s.156D of the Duties Act.
  12. Section 35(2)(a) of the Legal Profession Act
  13. Section 416 of the Legal Profession Act
  14. Sections 445 and 452 of the Duties Act
  15. Section 445(3) and (4) and s.452(3) and (4) of the Duties Act
  16. Sections 446 and 453 of the Duties Act
  17. Chapter 13, Part 1 of the Duties Act
  18. See definition of ‘information notice’, Schedule 6 of the Duties Act.