Tax Practitioners Board v Munro

[2012] FCA 1338

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(Judgment by: Collier J)

Tax Practitioners Board
vMunro

Court:

Judge:
Collier J

Subject References:
Taxation
application for imposition of pecuniary penalties and related declaratory and injunctive relief
alleged contraventions of Tax Agent Services Act 2009 (Cth)
provision of tax agent services where respondent not registered tax agent
proceedings commenced by Tax Practitioners Board
respondent admits alleged contraventions
agreement between parties on penalty, declarations and injunctions
relevant principles
agreement on appropriate orders relevant but not decisive
agreed penalty appropriate in light of respondent's conduct and need for general and specific deterrence
possible inability of respondent to comply with orders previously consented to

Legislative References:
Crimes Act 1914 (Cth) - s 4AA(1)
Federal Court of Australia Act 1976 (Cth) - s 21
Income Tax Assessment Act 1936 (Cth) - s 251L
Tax Agent Services Act 2009 (Cth) - s 2-5; s 50-5(1); s 50-35(1); s 50-35(2); s 60-15; s 70-5; s 90-1

Case References:
Ainsworth v Criminal Justice Commission - (1992) 175 CLR 564
Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) - [2010] FCA 977
Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) - (2006) 155 FCR 377
Australian Competition and Consumer Commission v Chen - (2003) 132 FCR 309
Australian Competition and Consumer Commission v Goldy Motors Pty Ltd - [2000] FCA 1885
Australian Competition and Consumer Commission v MSY Technology Pty Ltd - (2012) 201 FCR 378
Australian Competition and Consumer Commission v Pacific Dunlop Ltd - [2001] FCA 740
Forster v Jododex Australia Pty Limited - (1972) 127 CLR 421
Gardner v Dairy Industry Authority of NSW - (1977) 18 ALR 55
Markarian v The Queen - (2005) 228 CLR 357
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd - [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission - (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd - (2007) 158 FCR 543
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd - [1921] 2 AC 438
Tax Practitioners Board v Hogan - [2012] FCA 642
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) - (1993) 41 FCR 89
White v Construction, Forestry, Mining and Energy Union - [2011] FCA 192

Hearing date: 7 November 2012
Judgment date: 28 November 2012

Brisbane

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Judgment by:
Collier J

REASONS FOR JUDGMENT

1 By an originating application filed 1 June 2012, the applicant in this proceeding seeks declarations, injunctive relief, a pecuniary penalty and costs against the respondent Ms Munro for contraventions of s 50-5(1) of the Tax Agent Services Act 2009 (Cth) ("Tax Agent Services Act"). It is not in dispute that this application was filed against a background whereby Ms Munro had, on 14 separate occasions between about July 2010 and August 2011, and in return for monetary payment, provided the following services:

•

given advice to a person in relation to the person's income tax return ("ITR");

•

completed details of the person's ITR in preparation for lodgement; and

•

lodged the person's ITR with the Commissioner of Taxation.

2 The persons listed in Schedule A to the originating application as the recipients of these services, and the dates on which these services were provided, were as follows:

3 It is not in dispute that, at all material times during which these services were provided by Ms Munro, she was not a registered tax agent.

4 A person who provides advice of this nature is required by the Tax Agent Services Act to be a registered tax agent within the meaning of that Act. The applicant claimed that Ms Munro's actions were in contravention of s 50-5(1) of the Tax Agent Services Act, which provides as follows:

(1)

You contravene this subsection if:

(a)

you provide a service that you know, or ought reasonably to know, is a *tax agent service; and

(b)

the tax agent service is not a *BAS service; and

(c)

you charge or receive a fee or other reward for providing the tax agent service; and

(d)

you are not a *registered tax agent; and

(e)

if you provide the tax agent service as a legal service - either:

(i)

you are prohibited, under a *State law or *Territory law that regulates legal practice and the provision of legal services, from providing that tax agent service; or

(ii)

subject to subsection (3), the service consists of preparing, or lodging, a return or a statement in the nature of a return.

Civil penalty:

(a)

for an individual - 250 penalty units; and

(b)

for a body corporate - 1,250 penalty units.

Note: Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

5 On 10 August 2012 a Statement of Agreed Facts was filed by the parties, in which ( inter alia ) Ms Munro admitted liability in respect of the 14 contraventions of the Tax Agent Services Act claimed by the applicant. On 14 August 2012 copies of consent orders signed by both parties, reflecting their agreement as to facts and appropriate orders intended to dispose of the matter, were provided to the Court.

6 At the hearing before me the applicant was represented by Counsel. Ms Munro appeared in person. When making her own submissions, Ms Munro indicated some resilement from the consent orders she had signed and which were before the Court. I will turn to this issue later in the judgment.

7 Before turning to consider the relevant issues, it is useful to examine the agreed facts in more detail.

Statement of Agreed Facts

8 In summary, the parties have agreed the following facts:

•

Between about July 2010 and August 2011, Ms Munro agreed to requests to provide services to identified taxpayers in relation to the preparation and lodgement of ITRs. Ms Munro provided services to the taxpayers or their authorised representatives, in the course of which she:

•

received information and documents potentially relevant to the preparation of the ITR;

•

considered the information and read the documents and, when she considered it necessary, asked for further information or documents;

•

determined or confirmed each taxpayer's assessable income and allowable deductions or offsets; and

•

caused this information to be transmitted to the ATO through electronic lodgement.

•

The services extended to Ms Munro suggesting deductions to which she believed the relevant taxpayers were entitled, and making claims for deductions on behalf of certain taxpayers without instructions to do so.

•

Ms Munro charged or received a fee of $60 for services provided in relation to each relevant ITR.

•

Ms Munro's purpose, and the effect of these activities, was to:

•

calculate and communicate to the Commissioner of Taxation the taxable income of the taxpayers based upon which an assessment of the taxable income was to be made by the Commissioner under the Income Tax Assessment Act 1936 (Cth) ("ITAA"); and

•

communicate information to the Commissioner for the purpose of the Commissioner's calculation of income tax payable and determination of refunds or further payments of taxation due under the ITAA.

•

Ms Munro believed she had sufficient knowledge of taxation concepts to provide the services. In providing the services, Ms Munro believed that the taxpayers were relying on her experience and knowledge in relation to taxation matters and preparation and lodgement of ITRs.

•

Ms Munro provided similar services to those described, in similar circumstances, in relation to other 2010 and 2011 ITRs not specifically identified in these proceedings.

•

Around 4 July 2011, Ms Munro pleaded guilty in the Magistrates Court of Queensland to 16 offences against s 251L of the ITAA for charging or receiving a fee for preparation of ITRs while unregistered.

•

From 1 March 2010 to 29 March 2012 Ms Munro was a registered business activity statement ("BAS") agent pursuant to the Tax Agent Services Act. Ms Munro was aware, when she provided the services to the relevant taxpayers, that she was required to be registered as a tax agent if providing such services for a fee or reward. Ms Munro was not, and was aware she was not, a registered tax agent pursuant to the Tax Agent Services Act.

•

Ms Munro has never lodged an application for such registration and it has therefore never been established by the Tax Practitioners Board that she has the required educational qualifications or relevant experience or is otherwise considered to be a fit and proper person for the purposes of registration. None of the services provided by Ms Munro was a service provided in relation to a BAS or as part of a legal practice.

•

Ms Munro obtained a financial benefit of $840 by providing the relevant services. She acknowledges she has received further payments for providing similar services in similar circumstances in relation to ITRs for the 2010 and 2011 tax years other than those identified.

•

The Commissioner undertook audits in respect of tax returns believed to have been lodged by Ms Munro for the 2010 tax year. Two of the relevant taxpayers had ITRs adjusted for increased tax liabilities as a result of the audit. One of the audited taxpayers had a penalty imposed of $7,740 for reckless preparation of his ITR in relation to an over-claim for a deduction. Ms Munro prepared and lodged that ITR and acknowledges the over-claim was the result of her error.

Relief sought

9 The parties have agreed to the following orders:

THE COURT DECLARES THAT :

1.

On 14 separate occasions detailed in the Schedule A to this order, between about July 2010 and about August 2011 and in relation to the persons respectively described in Schedule A to this order in respect of a particular occasion, the respondent by providing to that person a service:

1.1

that involved the respondent doing one or more of the following:

1.1.1

giving advice to the person in relation to the person's income tax return;

1.1.2

completing details of the person's income tax return in preparation for lodgement;

1.1.3

lodging the person's income tax return with the Commissioner of Taxation;

1.2

for which the respondent received a monetary payment for providing the said service;

1.3

with knowledge of the matters referred to in sub-paragraphs 1.1 and 1.2 above;

1.4

while the respondent was not a registered tax agent pursuant to the Tax Agent Services Act 2009 (Cth) (the Act);

1.5

which was not a service relating to a business activity statement; and

1.6

which was not provided as a legal service;

in each case:

1.7

by reason of the matters referred to in sub-paragraphs 1.1 and 1.2 above, provided a service that the person could reasonably be expected to rely upon to satisfy liabilities or obligations, or claim entitlements, that arise, or could arise, under a taxation law; and

1.8

by reason of the matters referred to in sub-paragraphs 1.1 to 1.7 above, supplied a tax agent service in contravention of subsection 50-5(1) of the Act.

THE COURT ORDERS BY CONSENT THAT :

2.

For a period of 3 years from the date of this order, the respondent be restrained, unless then registered as a tax agent pursuant to the Act, from requesting or accepting, whether directly or indirectly howsoever, a fee, benefit or reward of any kind for providing to another person or entity, whether directly or indirectly howsoever, a service relating to one or more of:

2.1

advising another person or entity in relation to their entitlements, liabilities or obligations in relation to an Australian taxation law;

2.2

completing for another person or entity a return or statement in relation to an Australian taxation law; or

2.3

lodging for another person or entity a return or statement in relation to a taxation law with the Australian Taxation Office.

3.

For a period of 3 years from the date of this order, if she is requested to provide to another person or entity a service relating to one or more of:

3.1

advising another person or entity in relation to their entitlements, liabilities or obligations in relation to an Australian taxation law;

3.2

completing for another person or entity a return or statement in relation to an Australian taxation law; or

3.3

lodging for another person or entity a return or statement in relation to a taxation law with the Australian Taxation Office;

the respondent must, before providing or agreeing to provide the said service, and unless then registered as a tax agent pursuant to the Act, inform the person or entity of the matters referred to in paragraphs 1 to 8 in Form A at Schedule B to the Order and, if the person or entity still requests the service be performed by the respondent:

3.4

have the person or entity complete and sign Form A annexed hereto;

3.5

send to the Tax Practitioners Board within 14 days of providing the service to the person:

3.5.1

a copy of the signed Form A; and

3.5.2

a statutory declaration:

a.

stating the details of the services provided to the person and whether the respondent requested or accepted a fee, benefit or reward of any kind, and if so, the nature of it; and

b.

witnessed by a person so authorised pursuant to the Statutory Declarations Regulations 1993 (Cth) as in force at the date of this Order; and

3.6

retain copies of each signed Form A and statutory declaration for a period of 3 years from the date of their execution.

4.

In respect of the 14 separate contraventions of the Act, the respondent pay one pecuniary penalty in the amount of $40,000.

5.

The respondent pay the pecuniary penalty to the Commissioner of Taxation on behalf of the Commonwealth of Australia, such penalty to be paid as follows:

5.1

$5,000.00 on or before [insert date one year from the date of the Orders];

5.2

$5,000.00 on or before [insert date two years from the date of the Orders];

5.3

$5,000.00 on or before [insert date three years from the date of the Orders];

5.4

$5,000.00 on or before [insert date four years from the date of the Orders];

5.5

$5,000.00 on or before [insert date five years from the date of the Orders]; and

5.6

the balance on or before [insert date six years from the date of the Orders].

6.

The respondent have liberty to apply in respect of the extension of any of the times provided for payment of the pecuniary penalty by order 5 herein.

7.

The respondent pay the costs of the applicant on a party and party basis to be taxed if not agreed.

SCHEDULE A TO THE ORDER

SCHEDULE B TO THE ORDER

FORM A

I, [ print full name ] ..........................................,

having requested Isabella Munro to provide a service (i) to me / (ii) to the entity named ...........................[ delete whichever inapplicable ]

relating to one or more of the following:

(a)

giving advice concerning entitlements, liabilities or obligations that arise or could arise under a taxation law;

(b)

completing a return or statement in relation to a taxation law; or

(c)

lodging a return or statement in relation to a taxation law with the Australian Taxation Office,

and having been informed that:

1.

she is not a registered tax agent;

2.

she may not have the educational qualifications to be a registered tax agent and could only finally ascertain whether she is eligible in terms of those qualifications to be registered if she were to apply to the Tax Practitioners Board for registration as a tax agent;

3.

she may not have the relevant experience as required by the Tax Agent Services Regulations 2009 to become a registered tax agent;

4.

she may not be a fit and proper person to be a registered agent so as to be able to provide a service relating to one or more of items (a), (b) or (c) above for a fee or other reward;

5.

a person or entity should seek assistance from a registered tax agent for matters that relate to such services or for such services;

6.

she does not wish to receive, and will not accept, any fee, benefit or reward of any kind for providing such a service;

7.

she is likely to be contravening the Tax Agent Services Act 2009 if she receives a fee, benefit or reward for providing such a service; and

8.

she is required by order of the Federal Court of Australia to inform me of these matters;

still request her to provide the service.

SIGNED................ DATE.........

print full address

Consideration

10 Notwithstanding the agreement reached by the parties in respect of appropriate declaratory and injunctive relief and penalties, it is for the Court to decide whether such orders are proper in the circumstances. So, for example, in relation to whether the Court ought make the declarations sought, the agreement neither provides the power to make declarations nor binds the Court's discretion ( Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [3]). Similar principles apply in relation to the exercise of the Court's discretion to order an injunction, which discretion in this case is conferred by s 70-5 of Tax Agent Services Act.

11 In relation to the penalties sought in this proceeding, it is trite to observe that although the parties have reached agreement in respect of both imposition and quantum, this agreement is not binding on the Court. It is ultimately for the Court to determine whether a penalty ought be imposed, and the appropriate penalty: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [70]. However it is also clear that the Court should accord weight to the agreement of the parties and, unless that agreement falls outside the appropriate range, should impose the penalties to which the parties have agreed: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 and 298-299; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [129]; White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 at [5].

Declarations

12 The Federal Court has power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth), including declarations that a person has engaged in conduct contravening the Tax Agent Services Act (cf Tax Practitioners Board v Hogan [2012] FCA 642).

13 Relevant factors for the Court to take into account in considering whether declaratory relief should be given include:

•

A declaration must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions ( Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ and Dawson, Toohey and Gaudron JJ).

•

The person seeking the declaration must have "a real interest ... [and] must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought" ( Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-438 per Gibbs J, quoting Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin; see also Ainsworth at 582 per Mason CJ and Dawson, Toohey and Gaudron JJ).

•

A declaration will not be granted if:

•

it will produce no foreseeable consequences for the parties ( Gardner v Dairy Industry Authority of NSW (1977) 18 ALR 55 at 69 per Mason J); or

•

it will have no utility ( Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2 ) (1993) 41 FCR 89 at 99 per Sheppard J).

•

The public interest nature of the statute which has been contravened and the role of the applicant in enforcing the statute ( Hogan at [12]). In particular, the public interest may be served by the making of declarations because:

•

declarations are appropriate vehicles to record disapproval of the relevant conduct ( Tobacco Institute at 100; Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 at [36]);

•

declarations serve to vindicate a regulator's claim of contravention ( Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] and [34]);

•

declarations assist in clarifying the law ( Goldy Motors at [34]); and

•

declarations may inform the public of dangers resulting from a respondent's contravening conduct ( Australian Competition and Consumer Commission v Pacific Dunlop Ltd [2001] FCA 740, at [59]-[69]).

14 In this case, it is first apparent from s 2-5 of the Tax Agent Services Act that the object of the statute is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct, and that this is to be achieved by, among other things, establishing the Tax Practitioners Board to register tax agents and BAS agents. Pursuant to s 60-15 of the Tax Agent Services Act, the Tax Practitioners Board was established to ( inter alia ) administer the system for registration of registered tax agents and BAS agents, and investigate conduct that may breach the Tax Agent Services Act. In light of its functions and powers under the Tax Agent Services Act, there is no doubt that the applicant has a real interest in seeking the declarations to which the parties have agreed.

15 Second, I am satisfied that the declarations sought have utility in publicly stating the contravening conduct in which Ms Munro has engaged.

16 Third, I am satisfied that the public interest would be served in making the declarations sought because, by the Court making the declarations:

•

disapproval of Ms Munro's conduct is expressed;

•

the Tax Practitioner Board's claim of contraventions by Ms Munro is vindicated; and

•

the public is informed of the dangers resulting from Ms Munro's contravening conduct.

17 This is particularly so in light of the evidence before the Court in the Statement of Agreed Facts that, following a tax audit of the ITRs of two of Ms Munro's "clients", those taxpayers were subject to increased tax liabilities and, in respect of one of those taxpayers, a penalty of $7,740 for reckless preparation of his ITR in relation to over-claim for a deduction. It is not in dispute that the over-claim was the result of the error of Ms Munro.

18 In light of these considerations I am prepared to order declaratory relief in the terms agreed by the parties.

Injunctive relief

19 Pursuant to s 70-5 of the Tax Agent Services Act the Court has the power to grant injunctive relief as follows:

70-5 Injunction to restrain or require certain conduct

(1)

If, on the application of the Board, the *Federal Court is satisfied that you have engaged, or are proposing to engage, in conduct that would constitute a contravention of a civil penalty provision, the Federal Court may grant an injunction:

(a)

restraining you from engaging in the conduct; or

(b)

if in the Federal Court's opinion it is desirable to do so, requiring you to do something.

(2)

Before deciding the application, the *Federal Court may grant an interim injunction:

(a)

restraining you from engaging in conduct; or

(b)

requiring you to do something.

20 In this case the orders to which the parties have agreed:

•

are specific, unambiguous and clear in the obligations they place on Ms Munro;

•

require no ongoing supervision by the Court;

•

increase the likelihood of detection if, in contravention of the Tax Services Agents Act, Ms Munro assists a person with a tax return in the future; and

•

build in a record-keeping mechanism to assist in ensuring future compliance by the respondent with the relevant law.

21 The injunctions deal practically with the possibility of future contraventions, by educating any person seeking tax agent services from Ms Munro, and by assisting Ms Munro to manage her relationships with any such person and remove herself from circumstances in which the conduct could be repeated, for example if pressure is being applied by previous clients (cf Hogan at [24]). A key purpose of the proposed injunctions is to ensure that potential clients of Ms Munro would be aware that she has not been assessed by the Tax Practitioners Board as being fit and proper, and suitably qualified and experienced, to provide tax agent services.

22 I find that it is appropriate to grant injunctions in the terms agreed by the parties.

Penalty

23 Section 50-5(1) of the Tax Agent Services Act, which I set out earlier in this judgment, provides for the imposition of civil penalties on unregistered individuals and unregistered bodies corporate which provide tax agent services. The maximum penalty for an individual is 250 penalty units and, for a body corporate, 1,250 penalty units. Section 90-1 of the Tax Agent Services Act provides:

penalty unit has the meaning given by section 4AA of the Crimes Act 1914 .

24 At all material times s 4AA(1) of the Crimes Act 1914 (Cth) provided that a "penalty unit" was $110. It follows that the maximum penalty for one contravention of s 50-5(1) of the Tax Agent Services Act by an individual is $27,500.

25 Where an individual or a body corporate contravenes a civil penalty provision under the Tax Agent Services Act, s 50-35(1) provides that the Tax Practitioners Board may apply to the Court for an order that the person pay a pecuniary penalty. Section 50-35(2) empowers the Court to order payment of a pecuniary penalty for each contravention.

26 In light of the agreed facts, it is clear (and, indeed, not in dispute) that Ms Munro has contravened s 50-5(1) of the Tax Agent Services Act. The parties agreed in orders submitted to the Court that Ms Munro should be subject to a pecuniary penalty of $40,000, payable in instalments over six years from the date of judgment, in respect of all contraventions of the Tax Agent Services Act.

27 In Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2 ) [2010] FCA 977 Barker J summarised principles relevant to consideration by the Court of the imposition of civil penalties:

[4] Sentencing (which the imposition of a civil penalty is an instance of) is one of the most, if not the most difficult tasks that judicial officers perform: CFMEU v Williams [2009] FCAFC 171; (2009) 262 ALR 417 ( Williams ) at [28].

[5] The overriding principle is to ensure that the sentence is proportionate to the gravity of the contravening conduct: Attorney-General (SA) v Tichy (1982) SASR 84 at 92-93.

[6] The purpose to be served by the imposition of penalties is at least threefold:

(1)

Punishment, which must be proportionate to the offence and in accordance with prevailing standards;

(2)

Deterrence, both personal (assessing the risk of re-offending) and general (a deterrent to others who might be likely to offend); and

(3)

Rehabilitation.

See Ponzio v BP Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 ( Ponzio ), Lander J at [93]-[94].

[7] The task which a sentencing judge is faced with is one of "instinctive synthesis": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 ( Australian Ophthalmic Supplies ), Gray J at [27] and Graham J [55]. Such a process requires that a court take into account all relevant factors and to arrive at a single result which takes due account of them all: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [74]-[76]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 ( Markarian ), Gleeson CJ, Gummow, Hayne and Callinan JJ at [37]-[39]. The penalty must not be so great as to crush the person upon whom the penalty is imposed or reveal the person as a scapegoat: Ponzio at [93] (Lander J); McDonald v R (1994) 48 FCR 555 at 563. The maximum penalty is reserved for only the most serious of contraventions: Markarian at [31]. Proportionality and consistency commonly operate as a final check on the penalty assessed: Australian Ophthalmic Supplies at [53].

28 I respectfully adopt his Honour's summary as a useful guide in this proceeding.

29 In relation to the appropriate penalty figure, I also note that Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357 explained the proper approach of the Court to the imposition of penalties in particular circumstances. In summary, their Honours observed that:

•

the imposition of an appropriate penalty is at the discretion of the sentencing judge, who must take into account all relevant considerations (at [27]);

•

careful attention is required to be given by the Court to the maximum penalty in each case (at [31]);

•

in general, a sentencing Court will, after weighing all relevant factors, reach a conclusion that a particular penalty is the one that should be imposed (at [37]); and

•

an arithmetical process is unlikely to be appropriate where there are numerous and complex considerations to be weighed (at [39]).

30 In this case I consider the following factors relevant to consideration of the quantum of penalty appropriate in this case:

•

Ms Munro has admitted to 14 contraventions of s 50-5(1) of the Tax Agent Services Act occurring over a period of 13 months. For each service Ms Munro received $60. While the remuneration received by Ms Munro was relatively small, she nonetheless engaged in multiple contraventions of the Tax Agent Services Act over a reasonably long period of time.

•

It appears from the Statement of Agreed Facts that on 4 July 2011 Ms Munro pleaded guilty in the Magistrates Court of Queensland to 16 offences relating to charging or receiving a fee for preparing income tax returns while unregistered, in contravention of s 251L of the ITAA. Accordingly, it is clear that the admitted contraventions of the Tax Agent Services Act were not isolated events. It is also clear, and Ms Munro admits, that she has been aware, for some time, that she is required to be registered under the Tax Agent Services Act in order to lawfully provide the services the subject of the current proceeding.

•

Each contravention of the Tax Agent Services Act was engaged in as a separate act. It is reasonable, therefore, to treat each contravention as a separate contravention.

•

It is clear that Ms Munro was aware that the relevant taxpayers were relying on her experience and knowledge in relation to taxation matters and preparation of ITRs when she provided the relevant services, and that she provided services including suggesting and claiming deductions.

•

The applicant submits, and I accept, that, in fact, Ms Munro did not have the necessary expertise to be registered as a tax agent under the legislation. This is clear in light of the events following the audit of two of her "clients", which I have described earlier in this judgment. As a result of those audits, amended assessments were issued in respect of those "clients". Ms Munro has conceded that these events resulted from her own error.

•

Ms Munro agreed to and executed the Statement of Agreed Facts filed on 10 August 2012, and has consented to orders provided to the Court on 14 August 2012 to resolve this proceeding. This cooperation has significantly limited the time and expense of litigation.

•

While the penalty of $40,000 is not insignificant, it is small when compared with the maximum combined penalty which could be imposed on Ms Munro for the 14 contraventions which she has admitted (that is, in the sum of $385,000). I also consider that the arrangement agreed by the parties to permit Ms Munro to pay the penalty in instalments over six years, and to apply to the Court if she encounters difficulties making these payments, potentially relieves hardship Ms Munro could suffer from a penalty of this amount.

•

In relation to the issue of specific deterrence, the size of the penalty is sufficiently significant to deter Ms Munro from engaging in future contravening conduct.

•

In relation to the issue of general deterrence, I accept the submission of the applicant that the contravening conduct in this case goes to the heart of the relevant legislative scheme, and that the scheme of registration of practitioners can only operate properly if those involved in the area of work submit to the statutory regulatory system. To that extent, penalties imposed for contraventions of the legislation should be sufficiently serious to discourage individuals from offering services without complying with the statute.

31 In my view the sum of $40,000 is proportionate to the gravity of the contravening conduct and provides both specific and general deterrence in respect of similar future conduct, without being oppressive.

32 At the hearing on 7 November 2012, the respondent indicated that she would have difficulty paying the penalty in accordance with the agreement reflected in the consent orders submitted by the parties. I have considered Barker J's comment in Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2 ) at [7] that a penalty must not crush the person on whom it is imposed. However while it appears that the respondent does not have significant assets, she submitted at the hearing that she owns her own home and receives an aged pension. I consider that, given the respondent's previous signed consent to the orders provided to the Court, the inclusion in those orders of liberty to apply to the Court to vary the payment dates, and the requirement for general deterrence (cf Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2 ) (2006) 155 FCR 377 at [43]), the proposed penalty is appropriate.

33 Accordingly, I am prepared to order that a penalty be paid by Ms Munro in the sum of $40,000 in respect of her contraventions of the Tax Agent Services Act.