Tax Practitioners Board v Buckland (Interim Injunction)

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FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Buckland (Interim Injunction) [2023] FCA 836

File number(s): NTD 18 of 2022
Judgment of: HESPE J
Date of judgment: 25 July 2023
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain respondents from preparing and lodging income tax returns – where respondents located overseas – where respondents not registered tax agents
Legislation:

Acts Interpretation Act 1901 (Cth)

Income Tax Assessment Act 1997 (Cth)

Tax Agent Services Act 2009 (Cth)

Taxation Administration Act 1953 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2009) 189 IR 37; [2009] FCA 997

Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (2016) 244 FCR 538; [2016] FCA 976

Avant Group Pty Ltd v Kiddle [2023] FCA 685

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 ; [1986] HCA 58

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425; [2006] FCAFC 116

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248

Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95

Milam v University of Melbourne (2019) 285 IR 309; [2019] FCA 171

Morgan v White (1912) 15 CLR 1

Patrick Stevedores Operations (1998) 195 CLR 1; [1998] HCA 30

Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62; [2017] FCAFC 193

Tax Practitioners Board v Buckland [2022] FCA 1376

Tax Practitioners Board v Hacker [2020] FCA 1047

Tax Practitioners Board v Shanahan [2013] FCA 764

Redland Bricks Ltd v Morris [1970] AC 652
Division: General Division
Registry: Northern Territory
National Practice Area: Taxation
Number of paragraphs: 52
Date of last submission/s: 7 July 2023
Date of hearing: 29 June 2023
Counsel for the Applicant: Mr M J Follett
Solicitor for the Applicant: MinterEllison
Counsel for the First Respondent The first respondent appeared in person
Counsel for the Second Respondent: The second respondent did not appear

ORDERS

NTD 18 of 2022
BETWEEN:

TAX PRACTITIONERS BOARD

Applicant
AND:

ANTHONY DEAN BUCKLAND

First Respondent

APAT NA SEASONS PILIPINAS CORPORATION

Second Respondent

ORDER MADE BY:

HESPE J

DATE OF ORDER:

25 JULY 2023

THE COURT ORDERS THAT:

1.In these orders:

(a)“income tax return” has the meaning provided for in section 995-1 of the Income Tax Assessment Act 1997 (Cth);

(b)“taxpayer” has the meaning provided for in section 6(1) of the Income Tax Assessment Act 1936 (Cth); and

(c)“TAS Act” means the Tax Agent Services Act 2009 (Cth).

2.Pursuant to section 70-5(2) of the TAS Act, until the hearing and determination of the amended originating application or further…

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Details
Case
[2023] FCA 836
Decision Date

CaseChat Overview and Summary

In the Federal Court, the Tax Practitioners Board sought an interim injunction against Mr Anthony Buckland and a company, Apat Pty Ltd, to prevent them from preparing and lodging income tax returns for individuals, given neither Mr Buckland nor the company is registered as a tax agent. The respondents, located overseas, have not appeared to defend the proceedings. The court allowed the Board's application to proceed against the second respondent under the Federal Court Rules.

The court was required to determine whether there were compelling circumstances to grant the injunction. It considered the evidence from multiple affidavits, including testimonies from taxpayers who believed they were engaging with Mr Buckland for tax preparation services, despite his registration having been terminated. The affidavits detailed interactions via Facebook Messenger and email, where taxpayers provided sensitive information such as myGov login details and security codes. The Board also presented evidence showing Mr Buckland's ongoing involvement in tax return preparations through bank transactions linked to a "Wintergate Trust Account." Furthermore, the Board highlighted that Mr Buckland had received a "cease and desist" letter previously and that Apat Pty Ltd was not a registered tax agent.

The court found that the evidence demonstrated a clear pattern of Mr Buckland and Apat Pty Ltd engaging in activities that contravene the Tax Agent Services Act 2009. The potential harm to the public, including taxpayers, from continued unregistered tax preparation and lodgment activities outweighed any prejudice to the respondents. The court thus granted the injunction, restraining Mr Buckland and Apat Pty Ltd from preparing and lodging any income tax returns for a fee or reward until the matter is resolved. The court also ordered a case management listing and reserved costs.

Orders

Orders of the court

1. In these orders:

(a) “income tax return” has the meaning provided for in section 995-1 of the Income Tax Assessment Act 1997 (Cth);

(b) “taxpayer” has the meaning provided for in section 6(1) of the Income Tax Assessment Act 1936 (Cth); and

(c) “TAS Act” means the Tax Agent Services Act 2009 (Cth).

2. Pursuant to section 70-5(2) of the TAS Act, until the hearing and determination of the amended originating application or further order, the first respondent be restrained from preparing and/or lodging any income tax return for a taxpayer, for a fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act.

3. Pursuant to section 70-5(2) of the TAS Act, until the hearing and determination of the amended originating application or further order, the second respondent, whether by itself, its officers, servants, agents or howsoever otherwise, be restrained from preparing and/or lodging any income tax return for a taxpayer, for a fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act.

4. The matter be listed for case management.

5. Costs be reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Buckland is self-represented. The second respondent has not filed a notice of appearance. Leave was granted to the applicant to proceed with the interlocutory application against the second respondent pursuant to rule 10.43D of the Federal Court Rules 2011 (Cth) by Order of the Court dated 14 June 2023.Evidence relied upon The applicant relies upon 11 affidavits in support of its application (in addition to affidavits relating to service):(a)An affidavit of Ms Guise, an individual taxpayer, in which she gives evidence of her interactions with a person she believed to be Mr Buckland. Ms Guise testified that a person she believed to be Mr Buckland prepared and lodged her 2021 income tax return. Apart from emails she sent to an email address containing the name of Apat, her interactions with the person she believed to be Mr Buckland were via Facebook Messenger. The communications included providing her myGov login details and security codes. Ms Guise’s evidence is that she received an invoice by email from an email address containing Mr Buckland’s name with a description “Ordinary Tax Return”. Payment details provided to her in a subsequent email required payment to an account in the name of “Wintergate Trust Account”. Ms Guise testifies that she made that payment.(b)Two affidavits of Mr Cuerden, an individual taxpayer, in which he gives evidence of his interactions with a person he believed to be Mr Buckland. Mr Cuerden testified that a person he believed to be Mr Buckland prepared and lodged his 2014 and 2021 income tax return. Mr Cuerden recalled going to an office that Mr Buckland had in Darwin in 2014 and believed that he met with Mr Buckland in person at that time and that Mr Buckland lodged his 2014 income tax return during that appointment. Mr Cuerden testifies that in around July 2021 he searched for Mr Buckland online and his Facebook profile came up. The profile included a photograph of a man Mr Cuerden recognised as the Mr Buckland he met in 2014. Mr Cuerden’s interactions with the person he believed to be Mr Buckland were via Facebook Messenger. The communications included providing his myGov login details and security codes. Mr Cuerden’s evidence is that he made a payment to an account in the name of “Wintergate Trust Account” and that he believed Mr Buckland lodged his return based on messages he received from somebody he believed to be Mr Buckland and the income tax assessment he received for the year ended 30 June 2021.(c)An affidavit of Ms Ledingham, an individual taxpayer, in which she gives evidence of her interactions with a person she believed to be Mr Buckland. Ms Ledingham testifies that she sought the services of a person she believed to be Mr Buckland to prepare and lodge her income tax returns for the 2017 to 2021 income years. Ms Ledingham had telephone appointments with Mr Buckland for the lodgment of her 2017 to 2019 income tax returns. She believed her 2019 income tax return had been lodged via myGov. Between 22 July 2020 and 7 August 2020, Ms Ledingham had a telephone appointment with somebody she believed to be Mr Buckland and exchanged emails with respect to the preparation and lodgment of her 2020 income tax return. Ms Ledingham sent and received emails from an email address containing Apat’s name. Ms Ledingham had provided Mr Buckland with her myGov login details when he had assisted with lodging her 2019 income tax return. Based on emails she received from the email address containing Apat’s name, and a notice of assessment she received, she believed her 2020 income tax return had been lodged. In July 2020, Ms Ledingham received an email from the email address containing Apat’s name with bank account details for an account in the name of “Wintergate Trust Account”. Ms Ledingham made a payment to that account with a transaction description of “21 Jul Tax fee.” Ms Ledingham corresponded with Mr Buckland in relation to her 2021 income tax return using Facebook Messenger and email. Having again provided Mr Buckland with her myGov login details and security code, Ms Ledingham believed Mr Buckland lodged her 2021 income tax return because she received a photo containing a heading “Lodgment receipt” and later received a notice of assessment. On 1 October 2021, Ms Ledingham made a payment to the “Wintergate Trust Account”. On 4 October 2021, Ms Ledingham received a copy of a paid invoice from an email address containing Mr Buckland’s name.(d)An affidavit of Ms Hawkins, an individual taxpayer, in which she gives evidence of her interactions with a person she believed to be Mr Buckland. Her evidence is that in 2021 she sought the services of Mr Buckland to lodge her income tax returns for the years ended 30 June 2018 to 30 June 2021 (inclusive). From 24 August 2021 to 11 October 2021, she communicated with somebody she believed to be Mr Buckland using Facebook Messenger. The communications included providing her myGov login details and security code. Ms Hawkins testifies that she sent an email to and received emails from an email address containing Apat’s name. One of the emails she received from that email address attached an invoice payable to an account in the name of “Wintergate Trust Account”. Ms Hawkins paid this invoices by transferring an amount to the account details on the invoice. Based on messages she received, and notices of assessment she received, Ms Hawkins believed that Mr Buckland had lodged her 2018, 2019, 2020 and 2021 income tax returns. (e)An affidavit of Mr Cavallaro, an individual taxpayer, in which he gives evidence of his interactions with a person he believed to be Mr Buckland. Mr Cavallaro testifies that a person he believed to be Mr Buckland prepared and lodged his 2020 income tax return. Mr Cavallaro corresponded with a person he believed to be Mr Buckland in December 2020 through Facebook Messenger. Mr Cavallaro provided Mr Buckland with his myGov login details and security code. Mr Cavallaro also received emails from an email address containing Apat’s name. Mr Cavallaro was provided with bank account details for an account in the name of “Wintergate Trust Account” to which he made a payment for the amount Mr Buckland had told him was payable for the preparation of his 2020 income tax return and amendments made to his 2018 and 2019 returns. Mr Cavallaro believed that Mr Buckland had lodged his 2020 income tax return and amended 2018 and 2019 returns based on screenshots Mr Cavallaro received on Facebook Messenger and the fact that he received a tax refund payment.(f)Two affidavits of Mr Sherpa, an officer of the Australian Taxation Office (ATO) seconded to provide administrative assistance to the Board. Based on his own knowledge, his examination of the Board’s files and information provided to him by others, he testifies that Mr Buckland was previously registered as a tax agent but that the Board determined to terminate that registration with effect from 22 December 2017. Based on a review of the Board’s systems, which he conducted on 14 October 2022, Mr Buckland did not appear as a registered tax agent. According to ASIC records, Mr Buckland is a current director and shareholder of approximately 28% of the shares in Wintergate International Pty Ltd, with Apat holding about 45% of the shares in Wintergate. On 12 July 2018, Mr Buckland was sent a “cease and desist” letter from the Board. On 1 December 2021, the Board received a letter from an individual identifying herself as an “Associate Director” of Apat stating that Mr Buckland had sold the intellectual property and business name of “Anthony D Buckland” and “Anthony D Buckland International Tax Accountant” to that company and that company provided services in the business name of “Anthony D Buckland”. In his second affidavit, Mr Sherpa testifies that he conducted a review of the Board’s systems which record details of persons registered as registered tax agents and Apat did not appear to ever have been a registered tax agent.(g)An affidavit of Ms Willis, an officer of the ATO seconded to provide administrative assistance to the Board. The Board had sent a request to the ATO to provide regular reports to the Board with information relating to tax returns that may have been prepared and lodged by Mr Buckland. Based on that information, Ms Willis made enquiries of taxpayers who had been identified as having had their income tax returns lodged by Mr Buckland. Ms Willis gives evidence of her interactions with 5 such individuals. (h)An affidavit of Ms Sleep, in which she gives evidence of her interactions with a person she believed to be Mr Buckland. Her evidence is that she sought the services of Mr Buckland to lodge her partner’s (Mr Simpson’s) 2020 and 2021 income tax returns. From 19 November 2021 to 30 December 2021, she communicated with somebody she believed to be Mr Buckland through Facebook Messenger. The communications included providing her partner’s myGov login details and answers to “secret questions” which were required to be answered each time the person she believed to be Mr Buckland logged in. Ms Sleep also testifies that she sent emails to and received emails from an email address containing Apat’s name which were signed off “Cheers Tony”. Based on messages she received, Ms Sleep believed that Mr Buckland had lodged Mr Simpson’s 2020 and 2021 income tax returns. Ms Sleep further testifies that she received emails to Mr Simpson’s Gmail account from an email address containing Mr Buckland’s name attaching invoices payable to an account in the name of “Apat na Seasons Pilipinas” which included itemised amounts for the 2020 and 2021 tax returns. Ms Sleep paid these invoices by transferring amounts from Mr Simpson’s bank account to the account details on the invoices.(i)An affidavit of Mr Buckland himself.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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