Tax Practitioners Board v Shanahan [2013] FCA 764

FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Shanahan [2013] FCA 764 Citation: Tax Practitioners Board v Shanahan [2013] FCA 764

Parties: TAX PRACTITIONERS BOARD v MARK ANTHONY SHANAHAN

File number: NSD 28 of 2013

Judge: RARES J

Date of judgment: 19 July 2013

Legislation: Federal Court of Australia Act 1976 (Cth) s 21 Tax Agent Services Act 2009 (Cth) ss 50-5, 50-15, 50-35(3), 70-5

Cases cited: Australian Securities and Investments Commission v Ingleby [2013] VSCA 49 referred to Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Limited [2004] FCAFC 72 applied NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 applied

Date of hearing: 19 July 2013

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 23

Counsel for the Applicant: Mr C P O'Donnell

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr S A Lawrance

Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 28 of 2013

BETWEEN: TAX PRACTITIONERS BOARD

Applicant

AND: MARK ANTHONY SHANAHAN

Respondent

JUDGE: RARES J DATE OF ORDER: 22 JULY 2013 WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

1. On each of the 47 separate occasions detailed in Schedule A to these orders between about May 2010 and about June 2012, the respondent supplied a tax agent service in contravention of subsection 50-5(1) of the Tax Agent Services Act 2009 (Cth) by providing a service to the taxpayers referred to in Schedule A by reason of the following: (a) the respondent requesting and receiving from the taxpayer information that was potentially relevant to the preparation of the taxpayer's income tax return and completing details of the taxpayer's income tax return in preparation for lodgement with the Australian Taxation Office; (b) for which the respondent either received or charged a monetary payment for providing the said service; (c) with knowledge of the matters referred to in sub-paragraphs 1(a) and 1(b) above; (d) while the respondent was not a registered tax agent pursuant to the Tax Agent Services Act 2009 (Cth) or working under the supervision and control of a registered tax agent; (e) which was not a service relating to a business activity statement; and (f) which was not provided as a legal service; in each case: (g) by reason of the matters referred to in sub-paragraphs 1(a) and 1(b) above, provided a service that the taxpayer could reasonably be expected to rely upon to satisfy liabilities or obligations, or claim entitlements, that arise, or could arise, under a taxation law. 2. On each of the 2 separate occasions detailed in Schedule B to these orders between about December 2010 and September 2011, the respondent supplied a BAS service in contravention of subsection 50-5(2) of the Tax Agent Services Act 2009 (Cth) by providing a service to the taxpayers referred to in Schedule B by reason of the following: (a) the respondent requesting and receiving from the taxpayer information that was potentially relevant to ascertaining liabilities, obligations, or entitlements under A New Tax System (Goods and Services) Act 1999 (Cth) and preparing a Business Activity Statement for the taxpayer; (b) for which the respondent either received or charged a monetary payment for providing the said service; (c) with knowledge of the matters referred to in sub-paragraphs 2(a) and 2(b) above; (d) while the respondent was not a registered tax agent or BAS agent pursuant to the Tax Agent Services Act 2009 (Cth) or working under the supervision and control of a registered tax agent or BAS agent; and (e) which was not provided as a legal service; in each case: (f) by reason of the matters referred to in sub-paragraphs 2(a) and 2(b) above, provided a service that the taxpayer could reasonably be expected to rely upon to satisfy liabilities or obligations, or claim entitlements, that arise, or could arise, under A New Tax System (Goods and Services) Act 1999 (Cth). 3. On the 20 occasions detailed in Schedule C to these orders between about April and October 2010, the respondent falsely represented to the taxpayers referred to in Schedule C that the respondent was a registered tax agent in contravention of subsection 50-15 of the Tax Agent Services Act 2009 (Cth). THE COURT ORDERS THAT: 4. An order that the respondent, for a period of 3 years from the date of this order, if he is requested to provide to another person or entity a service relating to one or more of: (a) advising another person or entity in relation to their entitlements, liabilities or obligations in relation to an Australian taxation law or A New Tax System (Goods and Services) Act 1999 (Cth); (b) completing for another person or entity a return or statement in relation to an Australian taxation law or A New Tax System (Goods and Services) Act 1999 (Cth); or (c) lodging for another person or entity a return or statement in relation to a taxation law or A New Tax System (Goods and Services) Act 1999 (Cth) with the Australian Taxation Office; then, before providing or agreeing to provide the said service, he must, unless then registered as a tax agent or, in respect of a BAS service, a registered BAS agent, pursuant to the Tax Agent Services Act 2009 (Cth) or working under the supervision and control of a registered tax agent or, in respect of a BAS service, a registered BAS agent, inform the person or entity of the matters referred to in paragraphs 1 to 8 in Form A annexed hereto and, if the person or entity still requests the service be performed by the respondent: (d) have the person or entity complete and sign Form A annexed hereto; (e) retain a copy of the form for a period of 3 years; and (f) provide any such signed forms to the Tax Practitioners Board (TPB) within 14 days of its request. 5. In respect of each of the 47 separate contraventions of s50-5(1) of the Tax Agent Services Act 2009 (Cth), the respondent pay to the Commissioner of Taxation for the Commonwealth a pecuniary penalty of $617.02 for each contravention. 6. In respect of each of the 2 separate contraventions of s50-5(2) of the Tax Agent Services Act 2009 (Cth), the respondent pay to the Commissioner of Taxation for the Commonwealth a pecuniary penalty of $500, for each contravention. 7. The respondent pay the applicant's costs in the sum of $1,000 by 31 December 2013. 8. The respondent pay the pecuniary penalties totalling $30,000 referred to in orders 5 and 6 by instalments as follows: (a) $5,000 by 30 June 2014; (b) $5,000 by 30 June 2015; (c) $5,000 by 30 June 2016; (d) $5,000 by 30 June 2017; (e) $5,000 by 30 June 2018; (f) $5,000 by 30 June 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE A Column 1 Column 2 Column 3 Column 4 Taxpayer Relevant tax years Amount of fee paid or charged for Approximate date of the preparation of the income tax return 1 Alan Boyd 2009 $155 21 June 2010 2 Alan Boyd 2010 $165 3 November 2010 3 Debra Boyd 2009 $155 21 June 2010 4 Debra Boyd 2010 $165 3 November 2010 5 Janet Carrigan 2009 Portion of $1,782 3 May 2010 6 Janet Carrigan 2010 $160 27 April 2011 7 Michael Carrigan 2009 Portion of $1,782 3 May 2010 8 Michael Carrigan 2010 $160 27 April 2011 9 Partnership of J Carrigan and M Carrigan 2009 Portion of $1,782 3 May 2010 10 Partnership of J Carrigan and M Carrigan 2010 Portion of $1,340 27 April 2011 11 Carrigan Constructions Pty Ltd 2009 Portion of $1,782 3 May 2010 12 Carrigan Constructions Pty Ltd 2010 Portion of $1,340 27 April 2011 13 Gregory Chittick 2010 $671 3 February 2011 14 Jessica Chittick 2010 $100 October 2010 15 Julie Chittick 2010 $95 28 October 2010 16 Glenda Cook 2009 Portion of $515 27 May 2010 17 Glenda Cook 2010 Portion of $575 29 October 2010 18 Kenneth Cook 2009 Portion of $515 27 May 2010 19 Kenneth Cook 2010 Portion of $575 29 October 2010 20 Robert Croll 2010 $105 26 October 2010 21 Robert Croll 2011 $110 10 July 2011 22 Jarrod Gehrmann 2010 $112.50 5 August 2010 23 Mark Harris 2009 Portion of $2,387 14 July 2011 24 Andrew Hart 2010 $120 9 September 2010 25 Andrew Hart 2011 $120 12 April 2012 26 Natasha Hart 2010 $115 6 August 2010 27 Natasha Hart 2011 $120 12 April 2012 28 Brien Hosking 2010 $120 17 January 2011 29 Natasha Hosking 2010 $120 17 January 2011 30 Jayne Lewis 2010 $600 19 November 2010 31 Jayne Lewis 2011 $535 19 October 2011 32 William Moore 2010 $125 1 September 2010 33 William Moore 2011 $125 (approx) 15 November 2011 34 Catherine Murray 2010 $110 30 July 2010 35 Catherine Murray 2011 $145 23 August 2011 36 Brett Murray 2010 $125 30 July 2010 37 Brett Murray 2011 $145 23 August 2011 38 Arianna Nash 2010 $140 17 August 2010 39 Deborah Sedgwick 2010 $195 9 February 2011 40 Deborah Sedgwick 2011 $360 21 June 2012 41 Jan-Marie Tai 2010 $110 17 August 2010 42 Jan-Marie Tai 2011 $120 10 August 2011 43 Michael Tai 2010 $110 19 August 2010 44 Michael Tai 2011 $110 17 August 2011 45 Andrew Tom 2010 $110 5 August 2010 46 Andrew Tom 2011 $110 26 October 2011 47 William Toulmin 2010 $125 23 August 2010