Tax Practitioners Board v Williams

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] FCA 63
• Date: 08 February 2023

Federal Court of Australia

Tax Practitioners Board v Williams [2023] FCA 63

File number:	SAD 95 of 2021
Judgment of:	CHARLESWORTH J
Date of judgment:	8 February 2023
Catchwords:	CONTEMPT – breach by the respondent of an interlocutory injunction granted under s 70-5(1) of the Tax Agent Services Act 2009 (Cth) – contempt occurring in circumstances where respondent was conscious that his conduct contravened the Act – respondent aware of Court’s order – no adequate explanation for the contempt other than lack of appreciation that the Court would view the contravening conduct seriously – respondent generally cooperative in the proceedings – heightened need for general deterrence – imposition of a fine not appropriate – short term of imprisonment imposed ; TAXATION – application for civil penalties to be imposed for multiple breaches of s 50-5(1) of the Tax Agent Services Act 2009 (Cth) – respondent conscious of wrongdoing – respondent continuing to breach the Act after becoming aware initial contraventions had been detected – lack of adequate explanation – weight to be given to cooperation in proceedings generally when assessing need for specific deterrence – need for specific and general deterrence in respect of future contraventions of critical provision of the Act – fine imposed commensurate with evidence of respondent’s financial means – risk of loss of assets and bankruptcy considered
Legislation:	Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 191 Fair Work Act 2009 (Cth) s 546 Federal Court of Australia Act 1976 (Cth) s 31 Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 30-20, 50-5, 50-35, 70-5, 90-5
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488: Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 191 IR 445 Cruse v Multiplex Ltd (2008) 172 FCR 279 Director of the Fair Work Building Industry Inspectorate v Cartledge (No 2) [2015] FCA 851 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Latoudis v Casey (1990) 170 CLR 534 Mill v The Queen (1988) 166 CLR 59 Pelechowski v Registar, Court of Appeal (NSW) (1999) 198 CLR 435 QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; 204 IR 142 Tax Practitioners Board v Hacker (No 3) [2020] FCA 1814 Tax Practitioners Board v HP Kolya Pty Ltd (2015) 232 FCR 34 Tax Practitioners Board v Li [2015] FCA 233; 98 ATR 603 Tax Practitioners Board v Munro [2012] FCA 1338; 91 ATR 505 Tax Practitioners Board v Shanahan [2013] FCA 764; 94 ATR 356 Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; 276 ALR 596
Division:	General Division
Registry:	South Australia
National Practice Area:	Taxation
Number of paragraphs:	137
Date of hearing:	4 February 2022
Counsel for the Applicant:	Mr M Follett
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondent:	Mr M Murphy
Solicitor for the Respondent:	Lynch Meyer

ORDERS

		SAD 95 of 2021
BETWEEN:	TAX PRACTITIONERS BOARD Applicant
AND:	NATHAN LUKE WILLIAMS Respondent

order made by:	CHARLESWORTH J
DATE OF ORDER:	8 FEBRUARY 2023

THE COURT DECLARES THAT:

1. The respondent contravened s 50-5(1) of the Tax Agent Services Act 2009 (Cth) (Act) by providing tax agent services for fee or reward whilst not a registered tax agent within the meaning of the Act on 73 occasions (civil contraventions).

THE COURT ORDERS THAT:

1. Pursuant to s 50-35(2) of the Act, for the civil contraventions the respondent is to pay pecuniary penalties to the Commonwealth totalling $80,000.00. Such penalties to be paid on a date to be fixed.

2. Pursuant to s 70-5(1) of the Act, the respondent is restrained from providing or offering to provide any tax agent services (as defined in the Act) for fee or reward, unless the respondent is registered to provide those services under the Act.

3. The parties have liberty to apply to vary or revoke the order in paragraph 2, either:

1. after the passage of 10 years from the date of the order; or

2. in the event that s 50-5(1) of the Act is amended or repealed.

4. For the contempt described in paragraph 2 of the orders made on 13 October 2021, the respondent be imprisoned in a correctional facility for 10 days, commencing on a date to be fixed.

5. The matter be set down for further submissions at 10:00am (ACDT) on 22 March 2023 as to:

1. the time by which the pecuniary penalties imposed by paragraph 1 are to be paid; and

2. the time of the commencement of the sentence referred to in paragraph 4 and the manner in which the respondent is to be taken into custody.

6. The respondent is to pay the applicant’s costs, to be taxed on a party-party basis if not agreed.

7. Liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1. The respondent Mr Nathan Luke Williams was previously a registered tax agent within the meaning of the Tax Agent Services Act 2009 (Cth) (TAS Act). His registration lapsed on 1 December 2018.

2. After the lapse of his registration, Mr Williams continued to prepare and lodge tax returns for tax payers in Australia for fee or other reward. By doing so, he committed multiple contraventions of s 50-5(1) of the TAS Act (civil contraventions).

3. On 8 June 2021, the Tax Practitioners Board commenced this action seeking the imposition of civil penalties and other relief in connection with Mr Williams’ contraventions. By its originating application the Board also sought interlocutory relief in the form of an injunction restraining Mr Williams from preparing and lodging tax returns for tax payers for fee or reward whilst not registered as a tax agent. On 18 June 2021, the Court granted the interlocutory injunction with Mr Williams’ consent (Injunction).

4. By a statement of charge dated 29 September 2021, the Board alleged that Mr Williams was in contempt of the Injunction by preparing and lodging seven income tax returns for four different tax payers on 5 July 2021, 22 July 2021 and 23 July 2021.

5. As explained below, Mr Williams admitted the conduct constituting the contraventions of the TAS Act as well as the conduct constituting the contempt. On 13 October 2021, Mr Williams was...