FEDERAL COURT OF AUSTRALIA
Tax Practitioners Board v Ordiales [2022] FCA 1612
File number: QUD 225 of 2022 Judgment of: LOGAN J Date of judgment: 7 December 2022 Catchwords: TAXATION – Civil penalties – admitted contraventions of s 50-5(1) of the Tax Agent Services Act 2009 (Cth) – providing tax agent services while not a registered tax agent – consideration of contravening conduct – course of conduct principle in the assessment of pecuniary penalties – general deterrence – grant of declaratory injunctive relief to restrain respondent from providing tax agent services Legislation: Crimes Act 1914 (Cth) s 4AA
Evidence Act 1995 (Cth) s 191
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Tax Agent Services Act 2009 (Cth) ss 50-5, 70-5, 90-1, 90-5
Trade Practices Act 1974 (Cth)
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426
Australian Competition and Consumer Commission v High Adventure Pty Limited [2006] ATPR 42-091
Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 41 Date of hearing: 7 December 2022 Counsel for the Applicant: Ms A Freeman Solicitor for the Applicant: MinterEllison Counsel for the Respondent: The Respondent appeared in person ORDERS
QUD 225 of 2022 BETWEEN: TAX PRACTITIONERS BOARD
Applicant
AND: FRANIBELLE SALDUO ORDIALES
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
7 DECEMBER 2022
PENAL NOTICE
TO: FRANIBELLE SALUDO ORDIALES
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER 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 DECLARES THAT:
1.On each occasion specified in Schedule A of the Amended Statement of Agreed Facts dated 31 October 2022 and filed in this proceeding, the respondent contravened section 50-5(1) of the Tax Agent Services Act 2009 (Cth) (Act) by preparing and lodging income tax returns for taxpayers, being the provision of a tax agent service, for a fee or other reward, whilst not a registered tax agent within the meaning of the Act.
THE COURT ORDERS THAT:
1.In respect of each of the 636 contravention, there be a penalty of $236 per contravention imposed, with a total penalty thereof $150,096 (pecuniary penalty).
2.The respondent pay the pecuniary penalty to the Commissioner of Taxation of the Commonwealth of Australia, on behalf of the Commonwealth of Australia.
3.Pursuant to section 70-5(1) of the Act, the respondent be permanently…
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- Case
- [2022] FCA 1612
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate pecuniary penalties for the admitted contraventions and whether to grant the respondent a permanent injunctive relief to restrain them from providing tax agent services while not a registered tax agent. The court also considered the principles of general deterrence and the course of conduct in assessing the appropriate penalties.
In its judgment, the court found that the respondent's actions constituted 636 separate contraventions of the Act. The court imposed a penalty of $236 per contravention, resulting in a total penalty of $150,096. The court considered the respondent's conduct, including the number of contraventions and the impact on the public, in determining the appropriate penalty amount. The court also granted the respondent a permanent injunctive relief, restraining them from providing tax agent services while not a registered tax agent, in accordance with section 70-5(1) of the Act.
The court ordered that the respondent pay the pecuniary penalty to the Commissioner of Taxation of the Commonwealth of Australia, on behalf of the Commonwealth of Australia. Additionally, the respondent is permanently restrained from providing tax agent services while not a registered tax agent, as defined in the Act.
Orders
Orders of the court
1. In respect of each of the 636 contravention, there be a penalty of $236 per contravention imposed, with a total penalty thereof $150,096 (pecuniary penalty).
2. The respondent pay the pecuniary penalty to the Commissioner of Taxation of the Commonwealth of Australia, on behalf of the Commonwealth of Australia.
3. Pursuant to section 70-5(1) of the Act, the respondent be permanently restrained from providing tax agent services (as defined in the Act) for a fee or other reward, whilst not a registered tax agent within the meaning of the Act.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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