Tax Practitioners Board v Caolboy

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] FCA 1559
• Date: 29 October 2020

Federal Court of Australia

Tax Practitioners Board v Caolboy [2020] FCA 1559

File numbers:	VID 6 of 2020
Judgment of:	WHEELAHAN J
Date of judgment:	30 October 2020
Catchwords:	CIVIL PENALTIES – admitted contraventions of the Tax Agent Services Act 2009 (Cth) – consideration of the contravening conduct and agreed pecuniary penalties – individual contravener – objectively serious contraventions – difficult personal circumstances – general deterrence – agreed pecuniary penalties ordered.
Legislation:	Bankruptcy Act 1966 (Cth), ss 82(3) and 153(1) Corporations Act 2001 (Cth), s 553B Evidence Act 1995 (Cth), s 191 Federal Court of Australia Act 1976 (Cth), s 53(1) Federal Court Rules 2011 (Cth), r 41.10 Limitation of Actions Act 1958 (Vic), s 5(4) Tax Agent Services Act 2009 (Cth), ss 50-5, 50-10, 50-15, 50-35, 50-45, 70-5, 90-5 and 90-10
Cases cited:	Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; 269 FCR 262 Australian Competition and Consumer Commission v Coles Supermarkets [2015] FCA 330 Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 4) [2020] FCA 1499 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Commissioner of Taxation v Pavihi [2019] FCA 2056 Commonwealth v Director, Fair Work Building Industry Inspectorate (The Agreed Penalties Case) [2015] HCA 46; 258 CLR 482 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mathers v Commonwealth [2004] FCA 217; 134 FCR 135 NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Tax Practitioners Board v Dedic [2014] FCA 511; 98 ATR 373 Tax Practitioners Board v Hogan [2012] FCA 642; 88 ATR 457 Tax Practitioners Board v Su [2014] FCA 731 Trade Practices Commission v CSR Limited [1990] FCA 762; 13 ATPR 41-076 Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203; 267 FCR 203
Division:	General Division
Registry:	Victoria
National Practice Area:	Taxation
Number of paragraphs:	78
Date of hearing:	29 October 2020
Counsel for the Appellant:	C Symons
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondents:	The respondent appeared in person

ORDERS

		VID 6 of 2020
BETWEEN:	TAX PRACTITIONERS BOARD Applicant
AND:	ARLENE CAOLBOY Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	29 October 2020

PENAL NOTICE

TO: ARLENE CAOLBOY

IF YOU (BEING THE PERSON BOUND BY ORDERS 1 AND 2 OF THESE ORDERS):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN ORDERS 1 OR 2 OF THESE ORDERS FOR THE DOING OF THE ACT; OR

(B) DISOBEY ORDERS 1 OR 2 BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1. The respondent, for a period of three years from the date of this order, if requested to provide to another person or entity a service whether by her employees, agents or however otherwise, that relates to one or more of:

   1. advising another person or entity in relation to entitlements, liabilities or obligations in relation to an Australian taxation law;

   2. completing or lodging for another person or entity a return, statement or correspondence with the Commissioner in relation to an Australian taxation law; or

   3. representing another person or entity in their dealings with the Commissioner of Taxation,

must, before providing or agreeing to provide the said service, and unless then registered as a tax agent pursuant to the Tax Agent Services Act 2009 (Cth), inform the person of the matters referred to in paragraphs [1]-[8] of Form A annexed to these orders and, if the person or entity still requests the service be performed by the respondent:

(i) have the person or entity complete and sign a copy of Form A annexed to these orders;

(ii) retain a copy of the completed and signed form for a period of three years; and

(iii) provide any such completed and signed form to the applicant within 14 days of its request.

2. The respondent, for a period of three years from the date of this order, must not, unless then a registered tax agent pursuant to the Tax Agent Services Act, make any reference, in connection with the description or promotion of any services she offers to provide, to matters involving taxation or the Australian Tax Office unless that reference is a statement, or is closely accompanied by another statement, to the effect that she is not registered pursuant to the Tax Agent Services Act to provide tax agent services or BAS services.

3. The respondent pay penalties in the total amount of $40,000 to the Commissioner of Taxation, who is to receive those penalties on behalf of the Commonwealth. Those penalties are to be paid, as follows:

   1. $5,000 on or before 29 October 2023;

   2. $5,000 on or before 29 October 2024;

   3. $5,000 on or before 29 October 2025;

   4. $5,000 on or before 29 October 2026;

   5. $5,000 on or before 29 October 2027;

   6. $5,000 on or before 29 October 2028;

   7. $5,000 on or before 29 October 2029; and

   8. $5,000 on or before 29 October 2030.

4. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The Tax Practitioners Board is established by and has general administration of the Tax Agent Services Act 2009 (Cth) (Act). The object of the Act is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. The Act gives effect to that object by providing for the registration of tax agents. In order for an individual to be registered, the Board must be satisfied that the individual is a fit and proper person, that the individual meets certain requirements prescribed by the regulations relating to qualifications and experience, that the individual maintains professional indemnity insurance that meets the Board’s requirements, and in the case of the renewal of registration, that the individual meets the Board’s requirements in relation to continuing professional education. Upon registration, a registered tax agent must comply with several requirements, including the Code of Professional Conduct that...