Tax Practitioners Board v HP Kolya Pty Ltd - [2015] FCA 472

FEDERAL COURT OF AUSTRALIA
Tax Practitioners Board v HP Kolya Pty Ltd [2015] FCA 472

Citation: Tax Practitioners Board v HP Kolya Pty Ltd [2015] FCA 472

Parties: TAX PRACTITIONERS BOARD v HP KOLYA PTY LTD (ACN 150 479 315) and PETER KOLYA

File number: ACD 65 of 2013

Judge: FOSTER J

Date of judgment: 14 May 2015

Catchwords:
STATUTORY INTERPRETATION – whether a registered migration agent who is not a qualified lawyer entitled to practise as such can provide a tax agent service or BAS agent service as a legal service within the meaning of subss 50-5(1)(e), 50-5(2)(d), 50-10(1)(d) or 50-10(2)(c) of the Tax Agent Services Act 2009 (Cth) – whether a donee of a general power of attorney can be a legal personal representative within the meaning of subss 50-5(3), 50‑5(4), 50-10(3) and 50-10(4) of that Act

TAXATION – tax agent services and BAS agent services – whether the respondents provided such services and advertised the provision of such services in contravention of subs 50-5 and subs 50-10 of the Tax Agent Services Act 2009 (Cth) – if so, what relief should be granted by way of civil pecuniary penalties, declarations and injunctions

Legislation: Evidence Act 1995 (Cth), s 67
Federal Court of Australia Act 1976 (Cth), s 20(1A) Income Tax Assessment Act 1936 (Cth), Pt VIIA
Income Tax Assessment Act 1997 (Cth), s 995-1
Legal Profession Act 2006 (ACT), ss 7, 8, 16 and 17
Migration Act 1958 (Cth)
Tax Agent Services Act 2009 (Cth), ss 2-5, 2-10, 3-5, 3-10, 20-5, 30-10, 30-15, 50-5, 50-10, 50-35, 70-5, Pt 5 and Pt 6, Div 60

Cases cited: Kolya v Tax Practitioners Board (2011) 81 ATR 912
Kolya v Tax Practitioners Board (2011) 85 ATR 635
Kolya v Tax Practitioners Board (2012) 87 ATR 474
Kolya v Tax Practitioners Board (2012) 88 ATR 471
Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205
Barbaro v The Queen (2014) 305 ALR 323
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
Markarian v The Queen (2005) 228 CLR 357
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v MacNeil-Brown (2008) 20 VR 677
Trade Practices Commission v CSR Limited [1991] ATPR 41-076

Date of hearing: 17–19 March 2014

Date of last submissions: 8 April 2014

Place: Sydney (heard in Canberra)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 112

Counsel for the Applicant: Mr TM Begbie

Solicitor for the Applicant: Australian Government Solicitor

Advocate for the Respondents: Mr P Kolya appeared on his own behalf and, with leave, on behalf of the first respondent

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 65 of 2013

BETWEEN:
TAX PRACTITIONERS BOARD
Applicant

AND:
HP KOLYA PTY LTD (ACN 150 479 315)
First Respondent

PETER KOLYA
Second Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

14 MAY 2015

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.On the thirty-one (31) occasions more particularly described in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCA 472
Decision Date: 14 May 2015

CaseChat Overview and Summary

The case of Tax Practitioners Board v HP Kolya Pty Ltd involved a dispute between the Tax Practitioners Board and HP Kolya Pty Ltd, along with its director, Mr Kolya. The Tax Practitioners Board sought to enforce the provisions of the Tax Agent Services Act 2009 (Cth), alleging that HP Kolya Pty Ltd and Mr Kolya had contravened several sections of the Act by providing tax agent and BAS agent services without being registered as such. The court was required to determine whether a registered migration agent who is not a qualified lawyer could provide tax agent or BAS agent services as a legal service, and whether a donee of a general power of attorney could be a legal personal representative under the Act.

The court found that HP Kolya Pty Ltd and Mr Kolya had indeed contravened the Act by providing unregistered tax agent and BAS agent services. The court held that the term "legal service" in the Act was not limited to services provided by qualified lawyers, and thus a registered migration agent could provide such services as a legal service. However, in this case, HP Kolya Pty Ltd and Mr Kolya had provided these services without the requisite registration, leading to the contravention of the Act. The court also found that a donee of a general power of attorney could not be considered a legal personal representative under the Act.

As a result of the contraventions, the court imposed civil pecuniary penalties on HP Kolya Pty Ltd and Mr Kolya, with HP Kolya Pty Ltd being fined $750,000 and Mr Kolya being fined $150,000. The court also granted the declarations and injunctions sought by the Board, restraining HP Kolya Pty Ltd and Mr Kolya from providing or advertising tax agent and BAS agent services for a period of ten years, unless they were registered or the services were provided free of charge. Costs were ordered to follow the event.

Orders

Orders of the court

13. Pursuant to subs 70-5 of the Act, HP Kolya is restrained from providing or offering to provide any tax agent services (as defined in the Act) and any BAS service (as defined in the Act) for a period of ten (10) years unless:

(a) HP Kolya is at the time of providing or offering to provide the tax agent service, a registered tax agent or, at the time of providing or offering to provide the BAS service, a registered tax agent or BAS agent; or

(b) The tax agent service or BAS service is provided free of charge, fee or reward.

14. Pursuant to subs 70-5 of the Act, Mr Kolya is restrained from providing or offering to provide any tax agent service (as defined in the Act) and any BAS service (as defined in the Act) for a period of ten (10) years unless:

(a) Mr Kolya is at the time of providing or offering to provide the tax agent service, a registered tax agent or, at the time of providing or offering to provide the BAS service, a registered tax agent or BAS agent; or

(b) The tax agent service or BAS service is provided free of charge, fee or reward.

15. Pursuant to subs 70-5 of the Act, HP Kolya is restrained for a period of ten (10) years from advertising in any form or by any medium that it will or might provide, or a person associated with it (including Mr Kolya) will or might provide, a tax agent service (as defined in the Act) or a BAS service (as defined in the Act) unless the conditions outlined above at paragraph 13, as they apply to any such advertisement, are satisfied.

16. Pursuant to subs 70-5 of the Act, Mr Kolya is restrained for a period of ten (10) years from advertising in any form or by any medium that he will or might provide, or a person associated with him (including HP Kolya) will or might provide, a tax agent service (as defined in the Act) or a BAS Service (as defined in the Act) unless the conditions outlined above at paragraph 14, as they apply to any such advertisement, are satisfied.

17. Pursuant to subs 50-35 of the Act, HP Kolya pay pecuniary penalties to the Commonwealth totalling $750,000 for the contraventions described in paragraphs 1, 2, 5 and 7 above.

18. Pursuant to subs 50-35 of the Act, Mr Kolya pay pecuniary penalties to the Commonwealth totalling $150,000 for the contraventions described in paragraphs 3, 6, 9 and 11 above.

19. The respondents pay the applicant’s costs of and incidental to this proceeding.

THE COURT NOTES THAT:

20. The applicant will not bring proceedings for contempt against HP Kolya or against Mr Kolya for any of the breaches of the Interim Injunctions described in declarations 2, 4, 8, 10 and 12 above.

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

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

ANNEXURE E

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Costs should follow the event.CONCLUSIONS For the reasons which I have explained, I propose to impose a civil pecuniary penalty upon HP Kolya of $750,000 for the contraventions proven against it. I also propose to impose a civil pecuniary penalty upon Mr Kolya of $150,000 for the contraventions proven against him. I will make the declarations and grant the injunctions sought by the Board. Costs will follow the event. There will be orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Tax Practitioners Board v HP Kolya Pty Ltd [2015] FCA 472
Parties:	TAX PRACTITIONERS BOARD v HP KOLYA PTY LTD (ACN 150 479 315) and PETER KOLYA
File number:	ACD 65 of 2013
Judge:	FOSTER J
Date of judgment:	14 May 2015
Catchwords:	STATUTORY INTERPRETATION – whether a registered migration agent who is not a qualified lawyer entitled to practise as such can provide a tax agent service or BAS agent service as a legal service within the meaning of subss 50-5(1)(e), 50-5(2)(d), 50-10(1)(d) or 50-10(2)(c) of the Tax Agent Services Act 2009 (Cth) – whether a donee of a general power of attorney can be a legal personal representative within the meaning of subss 50-5(3), 50‑5(4), 50-10(3) and 50-10(4) of that Act TAXATION – tax agent services and BAS agent services – whether the respondents provided such services and advertised the provision of such services in contravention of subs 50-5 and subs 50-10 of the Tax Agent Services Act 2009 (Cth) – if so, what relief should be granted by way of civil pecuniary penalties, declarations and injunctions
Legislation:	Evidence Act 1995 (Cth), s 67 Federal Court of Australia Act 1976 (Cth), s 20(1A) Income Tax Assessment Act 1936 (Cth), Pt VIIA Income Tax Assessment Act 1997 (Cth), s 995-1 Legal Profession Act 2006 (ACT), ss 7, 8, 16 and 17 Migration Act 1958 (Cth) Tax Agent Services Act 2009 (Cth), ss 2-5, 2-10, 3-5, 3-10, 20-5, 30-10, 30-15, 50-5, 50-10, 50-35, 70-5, Pt 5 and Pt 6, Div 60
Cases cited:	Kolya v Tax Practitioners Board (2011) 81 ATR 912 Kolya v Tax Practitioners Board (2011) 85 ATR 635 Kolya v Tax Practitioners Board (2012) 87 ATR 474 Kolya v Tax Practitioners Board (2012) 88 ATR 471 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Barbaro v The Queen (2014) 305 ALR 323 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 Markarian v The Queen (2005) 228 CLR 357 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v MacNeil-Brown (2008) 20 VR 677 Trade Practices Commission v CSR Limited [1991] ATPR 41-076
Date of hearing:	17–19 March 2014
Date of last submissions:	8 April 2014
Place:	Sydney (heard in Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	112
Counsel for the Applicant:	Mr TM Begbie
Solicitor for the Applicant:	Australian Government Solicitor
Advocate for the Respondents:	Mr P Kolya appeared on his own behalf and, with leave, on behalf of the first respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 65 of 2013

JUDGE:	FOSTER J
DATE OF ORDER:	14 MAY 2015
WHERE MADE:	SYDNEY