Decision impact statement

Legal Practice Board v Computer Accounting and Tax Pty Ltd

Venue: Supreme Court
Venue Reference No: CIV 1106 of 2007
Judge Name: Simmonds J
Judgment date: 13 August 2007
Appeals on foot:
No

Impacted Advice

Relevant Rulings/Determinations:

• Not applicable

Subject References:
Statutory contempt under Legal Practice Act, s 250
Corporation shown as public accountant and registered tax agent providing services for self-managed superannuation funds, including providing trust deeds
Whether engaging in legal practice contrary to s 123(1)
Whether s 123(1) applies to corporations
Whether corporation engaged in legal practice within s 4(b)
Whether corporation engaged in legal practice within s 4(c)(i)
Whether defence in s 124(3) applied
Whether reliance on advice in federal government publications relevant

Précis

This decision involved the Legal Practice Act 2003 (WA). Simmons J dismissed the application, finding that the Respondent engaged in legal practice which would have been in breach of the Act, but section 123 under which the proceedings were brought was not applicable to corporations.

Decision Outcome

Not applicable - Commissioner not a party. Originating motion dismissed.

Brief summary of facts

1. The Applicant brought an application against the Respondent for contempt under section 250 of the Legal Practice Act 2003 (WA) for preparing a trust deed.

2. At all material times the Respondent company had two directors. One director was a registered tax agent and Fellow of the National Tax and Accountant's Association. Neither were legal practitioners.

3. The Respondent advertised the preparation of trust deeds for $330 on its website.

4. One of the directors obtained a pro-forma trust deed for self managed superannuation funds from an internet company.

5. In her evidence, the director said she relied on advice from an officer of the superannuation section of the ATO that accountants could provide deeds to individual trustees in order to set up self managed superannuation funds on the basis of s 251L of the Income Tax Assessment Act 1936. She also referred to page 31 of a book entitled "Self Managed Superannuation Funds DIY super", fact sheet No 2059 and a booklet entitled "Role and responsibilities of trustees" published by the ATO.

6. In August 2006 the diector was asked to prepare a trust deed for a private or self-managed fund. She was paid $330 cash for the deed.

7. There was no evidence that the deed was ever signed or that property was set aside or that any steps were taken to procure an ABN or TFN.

Issues decided by the court or tribunal

1. Does the prohibition in s 123(1) of the Legal Practice Act, read if necessary with s 123(2), apply to corporations? No.

2. If it does, was the conduct in this case engaging in legal practice within the Legal Practice Act, s 123(1) read with s 4(b) or (c)(i)? Yes however it was not necessary to decide.

3. Was the respondent, directly or indirectly paid or remunerated or promised or expected payment or remuneration for that work within s 124(3)? Yes.

4. Is it relevant that the director was induced, by statements of the Australian Taxation Office, to believe she, as an accountant who was a registered tax agent, could lawfully provide the trust deed? No.

Tax Office view of Decision

The ATO has undertaken a review of its current website and other guidance products covering superannuation matters and can confirm that none contain advice of the nature referred to in this decision. The main document referred to in the decision (NAT 2059) was removed during a regular review earlier this year.

Taxpayers who become aware of any inaccuracies in superannuation products or advice provided by the Australian Taxation Office are invited to contact the Australian Taxation Office in relation to that issue.

Administrative Treatment

Implications on Law Administration Practice Statements

None

Court citation:
[2007] WASC 184
(2007) 213 FLR 212
(2007) 35 WAR 59

Legislative References:
Corporations Act 2001 (Cth)
9
206E

Income Tax Assessment Act 1936 (Cth)
251L

Interpretation Act 1984 (WA)
s 5

Legal Practice Act 2003 (WA)
s 3, s 4, s 27, s 45, s 47, s 48, s 69, s 70, s 75, s 76, s 86, s 87, s 123, s 124, s 125, s 250, s 253(2)(a)

Legal Practitioners Act 1893 (WA)
77

Case References:
Heedes v Legal Practice Board
[2005] WASCA 166

Legal Practice Board v Frichot
[2006] WASC 230

The Barristers' Board v Palm Management Pty Ltd
[1984] WAR 101

The Barristers' Board v Marbellup Nominees Pty Ltd
[1984] WAR 335

Hoffman v Chief of Army
(2004) 137 FCR 520
[2004] FCAFC 148

Legal Practice Board v Said
[2002] WASC 35

Florida Bar v Town
(1965) 174 So 2d 395

Re Matthews
(1938) 79 P 2d 535

Green v Hoyle
[1976] 2 All ER 633

Ostrowski v Palmer
(2004) 218 CLR 493

R v Jorgensen
[1995] 4 SCR 55