Tax Practitioners Board v Shanahan

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,…