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The Federal Court has held that the Tax Practitioners Board, being a regulator rather than a prosecutor, may make submissions to the court as to an appropriate range of penalties for contraventions of the Tax Agent Services Act 2009 (Cth).

Recent High Court authority (see Barbaro v R; Zirilli v R [2014] HCA 2) has made it clear that it is not the role or duty of the prosecution in criminal matters to make submissions on the available range of sentences for an offence. However, it seems that a regulator bringing a civil penalty proceeding stands in a different position from that of a prosecutor in a criminal proceeding. The specialist role of a regulator is one of the reasons why the Full Court of the Federal Court has supported the practice of submissions being made as to the appropriate penalty amount.

In this case, the respondent BAS agent had been found by the court to have contravened s 50-5(1) of the TAS Act on 86 separate occasions by providing a service that she knew, or ought reasonably to have known, was a “tax agent service” for a fee or other reward, without being a “registered tax agent”.

The Board submitted that the court should make an order imposing on the respondent a total pecuniary penalty in the range of $40,000 to $50,000 for the 86 contraventions. The maximum penalty payable in respect of each contravention is 250 penalty units. The amount of a penalty unit applicable to the contraventions is $110.

In the event, the court imposed a penalty of $500 for each of the 86 contraventions, for a total penalty of $43,000. This took into account the respondent’s partial acknowledgment of liability and limited capacity to pay a penalty. The court also made an order for the pecuniary penalty to be paid by instalments.

Tax Practitioners Board v Dedic [2014] FCA 511 (Federal Court, Davies J, 20 May 2014).

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