CIVIL PENALTIES – quantum – applicant contravened Tax Agent Services Act 2009 (Cth) s 50-20 by recklessly making false, incorrect or misleading statements to Commissioner of Taxation – relevant considerations in fixing appropriate penalty – statements not deliberately or knowingly false – no intention to mislead Commissioner – tax agent registration terminated as result of conduct – loss caused to Commonwealth – inconvenience to taxpayers – specific deterrence – general deterrence – early admission of contraventions – totality principle – proportionality of penalty to objective seriousness of contravening conduct – parity principle
1.Between about 6 July 2011 and 9 August 2011, 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
AGLC
Tax Practitioners Board v Su [2014] FCA 731
Case
[2014] FCA 731
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia was asked to determine the appropriate penalty for Tsu Chien Su, a registered tax agent, for his reckless conduct in contravention of section 50-20 of the Tax Agent Services Act 2009 (Cth). The Tax Practitioners Board sought declarations against and the imposition of a pecuniary penalty on the respondent for his conduct in lodging 25 false income tax returns on behalf of taxpayers. The Board contended that the penalty should reflect the seriousness of the contraventions, while the respondent argued for a lower penalty, given the absence of dishonesty, early admission of the contraventions, and his limited financial gain. The Court considered various principles of penalty determination, including proportionality, deterrence, rehabilitation, and the principle of totality. The Court held that the penalty should not be disproportionate to the objective seriousness of the conduct, and that the respondent's early admission and limited financial gain should be taken into account. The Court ultimately determined that an appropriate penalty would be $70,000, payable over seven years in instalments of $10,000. The Court also ordered declarations to be made as sought by the Board, with amendments to reflect that the respondent was reckless, rather than knowingly making false statements.