Juneja v Tax Practitioners Board [2017] FCA 908 | Case summary

Substantively identical to [25] without attribution. Includes a finding that the First Applicant knew or ought to have known that Cudmores (as trustee for the Trust) had a large amount of outstanding taxation liabilities

Large portions taken from [95]-[97] without attribution

89 By and large, this table is a fair representation of what has occurred. I say "by and large" because one might argue about one or two of the entries and the extent to which it is appropriate to describe the reproduction as substantively identical on the one hand, or similar or very similar on the other. The comparison suggests that the Tribunal accepted the respondent's statement of the relevant facts and, as to the critical matters of competence, character and contrition, it accepted the respondent's submissions, on a number of occasions, using the same phraseology. I do not know how the Tribunal prepared its reasons. However, it seems reasonable to infer that the Tribunal accepted the factual background outlined by the respondent and simply repeated it and then worked its way through the respondent's submissions in preparing its reasons. That does not mean that it did not consider the applicants' case or engage in an active intellectual process in accepting the respondent's submissions. 90 In addition, the following matters are to be noted. 91 First, many of the factual matters stated by the Tribunal were either expressly not in dispute or were not reasonably capable of being disputed. Apart from the alleged telephone call on 13 June 2013, I cannot see anything in the matters in the sections headed Introduction and Material Background which were or could be seriously in dispute. I say that, having regard to the material before the Tribunal and this Court, in particular, the Respondent's Statement of Issues and the applicants' response to that document. There was nothing contentious in this case about the matters in the sections headed Legal Framework and Legislation, Relevant Policy and Relevant Cases. As to the Statement of Issues, the Tribunal's reasons reflected the issues which the parties agreed before the hearing were the issues. In my opinion, in the ordinary case at least, it would be prudent, not a matter for criticism, to state the issues in terms of the parties' agreement as to the issues. The "lack" of attribution is of no significance in this context. 92 Secondly, the Tribunal did, from time to time in its reasons, refer to submissions of the applicants and did acknowledge that it was repeating or summarising or referring to a submission made by either the applicants or the respondent. In that section of the reasons appearing under the heading Consideration, there are the following subheadings: Competence (paragraphs 41 to 46 inclusive), Character (paragraphs 47 to 53 inclusive), Contrition (paragraphs 54 to 58 inclusive), and the Board's Submissions (paragraphs 59 to 60 inclusive). In considering competence, the Tribunal referred to a submission of the Board and a submission of the applicants (paragraph 46). In considering character, the Tribunal referred to three submissions of the Board, the fact that counsel for Mr Juneja did not cross-examine on a particular topic and a submission by the applicants (at [52]-[53]). In considering contrition, the Tribunal referred to the Board's submissions on four occasions ([55], [56] and [58]) as well as in its concluding paragraphs ([59] and [61]). 93 Thirdly, the Tribunal, whilst repeating a number of the respondent's submissions, did not simply adopt or copy all of the respondent's submissions. Some examples will suffice. The Tribunal in paragraphs 41 to 44 inclusive of its reasons reproduce a number of the statements in paragraphs 57 to 67 inclusive of the respondent's written submissions, but did not include paragraph 60, part of the last sentence in paragraph 59, and the first sentence in paragraph 61 and the changes made by the Tribunal to paragraphs 68 to 70 inclusive of the respondent's written submissions as reflected in paragraphs 45 and 46 inclusive of its reasons. Another example is to compare paragraph 55 of the Tribunal's reasons with paragraphs 89 - 91 of the respondent's closing written submissions: 55 The Board has submitted (and I further agree) that the Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder, but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan and/or other former staff members of Cudmores. Given what is stated at paragraph 42 above about the Applicant's duties as a director of Cudmores, the Board further submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores, particularly after he became its sole director on 12 January 2011. (Emphasis added.) 89 The Individual Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan, Ms Curnow and/or other former staff members of Cudmores. 90 In Re and Tax Agents' Board SA (1982) 13 ATP 192, Cook J relevantly stated (at pp 196-197): The failure to lodge his personal income tax returns and the failure to pay on time the group tax instalments suggests incompetence on [the agent's] part. In his evidence before me, [the agent] placed the blame on other persons … … [The agent] has laid the blame upon other persons in his practice. But all these matters were matters with respect to which [the agent] had ultimate responsibility and the duty to take a personal interest. The problems that arose reflect upon his competence. 91 Given what is staged at [62]-[64] above about the Individual Applicant's duties as a director of Cudmores, the Respondent submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores - particularly after he became its sole director on 12 January 2011. The comparison reveals that in paragraph 55 of its reasons, the Tribunal has acknowledged the source of the submissions and has not included paragraph 90 of the respondent's submissions. 94 Having regard to all of these considerations, I am not satisfied that such copying as has occurred means that the Tribunal has failed to bring its own mind to the issues and thereby constructively failed to exercise jurisdiction. 95 Ground of Appeal 5 must be rejected.

Conclusion 96 The applicants have not established an error of law and the appeal must be dismissed. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 10 August 2017

Juneja v Tax Practitioners Board

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (15)

Cited By (3)