Tax Practitioners Board v Hacker

Federal Court of Australia|2020-07-27|Before: Ms J, Rangiah J

Counsel for the Applicant: Mr S Couper QC with Mr D Chesterman

Solicitor for the Applicant: Australian Government Solicitor

BETWEEN: TAX PRACTITIONERS BOARD Applicant

ONE STOP GLOBAL STAFFING PTY LTD ACN 097 166 204 Second Respondent

NALEVIEW PTY LIMITED ACN 051 420 010 Third Respondent

JUDGE: RANGIAH J DATE OF ORDER: 27 JULY 2020

By 4.30 pm on 21 August 2020, the applicant file and serve written submissions (not exceeding 10 pages) and any affidavits concerning penalties and other relief for contraventions of ss 50-5(1) and (2) of the Tax Agent Services Act 2009 (Cth).
By 4.30 pm on 11 September 2020, the first and second respondents file and serve written submissions in response (not exceeding 10 pages) and any affidavits.
By 4.30 pm on 18 September 2020, the applicant file and serve any written submissions in reply (not exceeding three pages) and any affidavits in reply.
The hearing of the question of penalties and other relief for contraventions of ss 50-5(1) and (2) of the Tax Agent Services Act 2009 (Cth) be set down for 10.15 am on 28 September 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant, the Tax Practitioners Board, alleges that the respondents contravened s 50-5 of the Tax Agent Services Act 2009 (Cth) (the TAS Act) by providing tax agent services and BAS services for a fee or reward while not registered to provide those services. The applicant seeks declarations, injunctions and the imposition of pecuniary penalties. 2 The first respondent, Kent Scott Hacker, denies all the allegations made against him. The second respondent, One Stop Global Staffing Pty Ltd (OSGS) admits some allegations, and denies others. The third respondent, Naleview Pty Limited (Naleview) also admits some allegations and denies others. 3 The hearing was conducted on the basis that the allegations of contravention would be determined first, and questions of penalties and other relief will be determined separately. 4 There are two significant features of the procedural history of the matter. The first is that on the second morning of the four day trial, the applicant sought leave to file a further amended pleading. This was opposed by the respondents. I heard argument upon the issue and reserved my decision. It will be necessary to deal with that issue as a preliminary matter. 5 The second feature is that the applicant has brought proceedings against OSGS and Mr Hacker for contempt of Court arising from their alleged breach of an undertaking given to the Court on 1 March 2019. The allegations are admitted by OSGS, but partly denied by Mr Hacker. I conducted a hearing of those charges at the conclusion of the hearing in relation to the alleged contraventions of the TAS Act. After my judgment was reserved, the applicant brought two further charges of contempt, which have been admitted by both Mr Hacker and OSGS. I will deal with the contempt charges in a separate judgment. 6 In respect of the allegations of contravention of s 50-5 of the TAS Act, I propose to proceed by: Describing the factual background against which the proceedings arises. Setting out the relevant statutory provisions. Identifying the allegations in the existing pleading which are admitted, and those which are contested. Considering the applicant's application to file its further amended pleading. Considering the contested allegations.

Background 7 The applicant is responsible, under s 60-15 of the TAS Act, for administering the system for registration of tax agents and BAS agents, and for investigating and prosecuting conduct which breaches the TAS Act. 8 Mr Hacker is the sole director and secretary of OSGS. The single share issued by OSGS is held by Naleview. 9 Mr Hacker is a director of Naleview, together with one other person. Mr Hacker is its secretary. Mr Hacker holds half of Naleview's shares, while the other director holds the other half. The other director has not received any benefit from, or participated in the management of Naleview since 2000. 10 OSGS operated from premises including Suite 6, Level 17, 141 Queen Street, Brisbane City. I will refer to these premises as, "the City Office". 11 Naleview operated from premises at Unit 1, 27 Windorah St, in Stafford, a suburb in the northern suburbs of Brisbane. I will refer to these premises as, "the Stafford Office". 12 The respondents admit that none of Mr Hacker, OSGS or Naleview are, or have ever been, registered under the TAS Act as a registered tax agent or as a registered BAS agent. They admit that none of them are, or have ever been, entitled to conduct a legal practice in Queensland. 13 The applicant alleges that Mr Hacker prepared income tax returns for numerous clients in the 2015/16, 2016/17 and 2017/18 financial years. It is alleged that the services were provided at Naleview's Stafford Office or OSGS' City Office. It is alleged that the clients who attended the Stafford Office would be charged and pay fees for Mr Hacker's services to Naleview, while those who attended the City Office would be charged and pay fees to OSGS. It is alleged that the respondents provided unregistered tax agent services for fee or other reward in contravention of s 50-5(1) of the TAS Act. 14 Further, it is alleged that Mr Hacker (but not OSGS or Naleview) prepared BAS statements on three occasions, for which OSGS charged and received a fee. It is alleged that Mr Hacker provided unregistered BAS services for reward in contravention of s 50-5(2) of the TAS Act.

The statutory provisions 15 Section 2-10 of the TAS Act provides: 2-10 General guide to each Part (1) You need to be registered to provide *tax agent services for a fee or to engage in other conduct connected with providing such services. Part 2 sets out the requirements for registration. …. 16 Section 50-5 of the TAS Act provides: 50-5 Providing tax agent services if unregistered (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 or a *tax (financial) advice 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. … (2) You contravene this subsection if: (a) you provide a service that you know, or ought reasonably to know, is a *BAS service; and (b) you charge or receive a fee or other reward for providing the BAS service; and (c) you are not a *registered tax agent or BAS agent; and (d) if you provide the BAS 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 BAS service; or (ii) subject to subsection (4), the service consists of preparing, or lodging, a return or a statement in the nature of a return; and (e) if the BAS service relates to imports or exports to which an *indirect tax law applies - you are not a customs broker licensed under Part XI of the Customs Act 1901. Civil penalty: (a) for an individual - 250 penalty units; and (b) for a body corporate - 1,250 penalty units. … 17 Section 90-5 of the TAS Act provides: 90-5 Meaning of tax agent service (1) A tax agent service is any service: (a) that relates to: (i) ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or (ii) advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or (iii) representing an entity in their dealings with the Commissioner; and (b) that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes: (i) to satisfy liabilities or obligations that arise, or could arise, under a taxation law; (ii) to claim entitlements that arise, or could arise, under a taxation law. 18 Section 90-10 of the TAS Act provides: 90-10 Meaning of BAS service (1) A BAS service is a *tax agent service: (a) that relates to: (i) ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *BAS provision; or (ii) advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a BAS provision; or (iii) representing an entity in their dealings with the Commissioner in relation to a BAS provision; and (b) that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes: (i) to satisfy liabilities or obligations that arise, or could arise, under a BAS provision; (ii) to claim entitlements that arise, or could arise, under a BAS provision. … 19 Section 140 of the Evidence Act 1995 (Cth) provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 20 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that Dixon J's discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof, "appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account". The relevant considerations include that findings of contravention of ss 50-5(1) and (2) of the TAS Act expose the respondents to the imposition of pecuniary penalties.

The allegations in the Current Pleading admitted or denied 21 The applicant's existing pleading is a further amended statement of claim filed on 10 December 2019 (the Current Pleading). 22 The allegations of provision of unregistered tax agent services pursued against the respondents in the Current Pleading may be broadly categorised into two groups. The first consists of allegations where clients have provided affidavits deposing as to provision of tax agent services by Mr Hacker and payment for those services to either Naleview or OSGS (the Affidavit Allegations). The second consists of allegations that Mr Hacker and OSGS provided tax agent services described in Schedule A to the Current Pleading (the Schedule A Allegations). There are approximately 3,000 allegations in Schedule A. There is an overlap between the two categories, in that some of the Affidavit Allegations are a sample or sub-group of those comprising the Schedule A Allegations. 23 OSGS admits five of the Affidavit Allegations, but contests the remaining one. OSGS denies the Schedule A Allegations (apart from the five that are also Affidavit Allegations). 24 Naleview admits 33 of the Affidavit Allegations made against it, but there is a dispute about whether one of the admitted contraventions consisted of one or two tax agent services. Naleview contests a further three allegations. The applicant conceded that it does not pursue any Schedule A Allegations against Naleview. 25 There are also allegations of three contraventions of s 50-5(2) of the TAS Act by providing unregistered BAS services for reward made against Mr Hacker. 26 Mr Hacker denies each of the allegations made against him.

The application to amend the Current Pleading 27 In the course of opening the case, senior counsel for the applicant conceded that, although the Current Pleading asserted that the services listed in Schedule A were provided by OSGS, in fact a number of those services had been provided by Naleview. Accordingly, counsel proposed that the applicant would amend Schedule A to delete the Naleview services. 28 Senior counsel opened the case on the basis that the applicant had obtained two electronically-recorded spreadsheets from OSGS' City Office, one for 2015/16 and one for 2016/17 (the Spreadsheets). Each Spreadsheet contains tabs (or files) labelled "City Office Clients" and "City Office Clients-Alphabetical". I understand the latter to be merely a rearrangement of the former in alphabetical order of the surname of the client. Counsel stated that the entries in Schedule A had been taken from the City Office Clients tabs of the Spreadsheets. Counsel submitted that the transactions recorded within those tabs provided evidence that the Schedule A services were provided by OSGS because OSGS operated from the City Office, implying that the label "City Office Clients" was applied to OSGS' clients. 29 The affidavits relied upon by the applicant were admitted into evidence without the deponents being required for cross-examination, with one exception. The respondents required Matthew Burtt, an officer of the Australian Taxation Office, for cross-examination. After Mr Burtt's cross-examination, the applicant closed its case. 30 The respondents read the affidavit of the respondents' solicitor, Terrence Fisher, who was not required for cross-examination. The respondent then closed its case. The evidence was completed on the first day of the trial. 31 The respondents' counsel requested that the applicant produce an amended version of Schedule A to reflect the applicant's concessions before closing addresses commenced. The trial was then adjourned until the next day. 32 At the commencement of the second day, senior counsel for the applicant announced that a mistake in Schedule A of the Current Pleading had been discovered. The applicant's lawyers had thought that the transactions listed in Schedule A had been transposed from the City Office Clients tabs of the Spreadsheets. They had discovered that Schedule A instead consisted of transactions found within tabs labelled "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" in the Spreadsheets. It appears that the solicitor who prepared Schedule A had transposed the entries from the wrong tabs. Contrary to the way the applicant's case had been opened, Schedule A did not include the clients and transactions listed in the City Office Clients tabs of the Spreadsheets (other than nine which I was informed were common to both sets of tabs). 33 The applicant then sought leave to file a second further amended statement of claim (the Proposed Pleading). The Proposed Pleading contains three schedules, described as "Schedule A1", "Schedule A2" and "Schedule A3", in replacement of Schedule A. 34 Schedule A1 of the Proposed Pleading sets out the Affidavit Allegations, namely those transactions that are the subject of affidavits from clients. Schedule A1 is not controversial. 35 Schedule A2 contains the names of clients and transactions taken from the City Office Clients tab from the two Spreadsheets (omitting corporate clients). 36 Schedule A3 contains those transactions where it is alleged that Mr Hacker personally provided tax agent services to the City Office Clients described in Schedule A2. 37 Schedule A2 of the Proposed Pleading contains 606 names and transactions. Only nine of those names and transactions are included in Schedule A of the Current Pleading. Accordingly, Schedule A2 contains some 597 allegations of contraventions of s 50-5(1) of the TAS Act that are not pleaded in the Current Pleading. 38 Schedule A3 contains a smaller number of transactions than Schedule A2 because it only includes transactions where there is evidence that OSGS actually received payment from a client for Mr Hacker's services. There are 487 transactions in Schedule A3, nine of which are included in Schedule A of the Current Pleading. Accordingly, there are 478 alleged contraventions in Schedule A3 which are not alleged in the Current Pleading. 39 The applicant submits that the amendments should be allowed because they are necessitated by what was a simple mistake, and because the amendments will cause no prejudice to the respondents. The applicant submits that it filed written opening submissions in advance of the hearing, and opened its case, on the basis that it was relying upon the City Office Clients tabs of the Spreadsheets. It submits that both sides conducted their case on the basis that the City Office Clients transactions formed the basis of the alleged contraventions. The applicant submits that this is demonstrated by the respondents' cross-examination of Mr Burtt, which was conducted to support a submission that no inference should be drawn that the City Office Clients were clients of OSGS. Counsel for the respondents has said that was also the purpose of Mr Fisher's affidavit, which demonstrated that the City Office was the registered address for numerous other companies. The applicant submits that all it is seeking to do is to bring the particulars into line with the way the case was conducted by both sides. The applicant submits that the respondents have not suggested that they would have run the case in a different way if the amendments had been foreshadowed prior to the evidence and have not sought an adjournment. 40 The respondents submit that what the applicant proposes to do, after the close of evidence, is to introduce some 597 new allegations against OSGS and some 478 new allegations against Mr Hacker. The respondents submit that the applicant's opening of its case was on the basis that the Schedule A contraventions were only being pursued to the extent that they correlated with the City Office Clients tabs in the Spreadsheets. They submit that it was never the applicant's case that they were pursuing all the relevant entries in the City Office Clients tabs, but only those that were in common with entries in Schedule A of the Current Pleading, and there were only nine entries in that category. The respondents submit that what was represented was that it was the nine entries that were being pursued, not the further 600-odd transactions in the City Office Clients tabs. 41 The respondents submit that the applicant's outline of opening submissions refers expressly to the Spreadsheets recording details of lodgement dates, amount paid and by what method, and other details. The respondents point out that those details do not feature in the City Office Clients tabs, but only in the "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" tabs of the Spreadsheets. The applicant's outline goes on to say that the fact that OSGS had these records in its office allows an inference to be drawn that it provided tax agent services to each of the individuals recorded in the spreadsheet. The outline says later that, "some clients are identified as city clients, which invites the inference that the services were provided by OSGS to those clients". 42 The respondents submit that the cross-examination of Mr Burtt was designed to advance the submission that, contrary to the applicant's case, the fact that the Spreadsheets are obtained from the City Office premises provided a flimsy basis for inferring that OSGS must have provided the services. They submit that this does not demonstrate acquiescence to the way the applicant's case was presented. 43 Rule 16.53 of the Federal Court Rules 2011 (Cth) requires an applicant to apply for the leave of the Court to amend its pleading in circumstances such as the present. Under r 1.41, the Court may grant or refuse to grant the orders sought. 44 The factors relevant to the exercise of the discretion include the importance of the amendment to the party applying for it, the stage of the litigation in which leave to amend is sought, the explanation for the delay in seeking that leave and the potential for loss of public confidence in the legal system which can arise where the court is seen to accede to applications made without adequate explanation or justification: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [30] and [111]-[114]. 45 The applicant relies upon Water Board v Moustakas (1988) 180 CLR 491, for the proposition that amendment of particulars may be allowed more readily than the amendment of material facts. The High Court held at 497: In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged: See Dare v. Pulham (1982), 148 C.L.R. 658. In Leotta v Public Transport Commission (N.S.W.) (1976) 50 A.L.J.R. 666, at p. 668; 9 A.L.R. 437, at p. 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (N.S.W.) (1978) 52 A.L.J.R. 291 at p. 294; 18 A.L.R. 147, at p. 151-152. Jacobs J., with whom the other members of the court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated. 46 I do not accept the applicant's characterisation of the amendments as merely amending particulars of the allegations made. Each of the services set out in Schedule A2 and Schedule A3 of the Proposed Pleading is alleged to be a separate contravention of s 50-5(1) of the TAS Act. The fact that the services are set out in schedules should not mask the fact that the Proposed Pleading makes some 597 allegations of contraventions against OSGS and some 478 allegations against Mr Hacker not previously made. Each new allegations exposes OSGS and Mr Hacker to the possibility of a separate pecuniary penalty. 47 The applicant submits that the respondents acquiesced in the presentation of the applicant's case in a manner different from the pleaded case. In Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279, the High Court held at 286-287: The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd. (In liq.) (1916) 22 C.L.R. 490, at p. 517, per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, eg, Browne v Dunn (1893) 6 R., at p. 76; Mount Oxide Mines (1916) 22 C.L.R. at pp. 517-518. Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference. … 48 The names and transactions in Schedule A of the Current Pleading were taken from the "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" tabs of the Spreadsheets. I do not accept the applicant's submission that its written outline of argument made it clear that the case was being put on the basis that it relied upon the transactions in the City Office Clients tabs, rather than the "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" tabs. The outline referred to details that did not appear in the City Office Clients tabs, and only appeared in the "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" tabs. The outline did not refer by name to the City Office Clients tabs, but referred to only "city clients", which could have been a reference to any of the names discovered in the spreadsheets found in OSGS' City Office in Brisbane. 49 However, I accept that in its opening, the applicant expressly relied upon the entries under the City Office Clients tabs of the Spreadsheets. I do not accept the respondents' submission that the applicant's opening should be understood as only pursuing allegations involving the nine clients that were named both in the City Office Clients tabs and the "2015,16 (Alphabetical)" and "2016,17 (Alphabetical)" tabs. However, at no point during the opening did the applicant seek to amend Schedule A in the way that is now proposed. Accordingly, there was disconformity between the opening and the pleading. It can be said that it was uncertain, at best, as to which contraventions in Schedule A were being pursued during the opening. In fact, it was the respondents' counsel who asked for the applicant to amend Schedule A prior to closing addresses to reflect the concessions made by the applicant so that she could understand which contraventions were being pressed. It was the process of amendment which revealed the error to the applicant's lawyer. I do not think it can be inferred that the respondents' counsel understood and was aware of the disconformity, when it was clearly not evident to the applicant's lawyers. It certainly cannot be said that the applicant's opening was presented on the basis that OSGS had committed some 597 contraventions of s 50-5(1) of the TAS Act that had not previously been alleged, and Mr Hacker some 478 contraventions. I do not accept that there was acquiescence by the respondents in the presentation of the applicant's case on a different basis to the basis pleaded. 50 I do not think that the respondents are required to demonstrate precisely how they might have run the case differently if Schedule A had been amended in the way now proposed prior to the close of evidence. What is clear is that the applicant now seeks to allege hundreds of new contraventions against OSGS and Mr Hacker for the first time. The respondents were entitled to defend the case on the basis of what has been pleaded. They have had no opportunity to investigate the new transactions. Simply because the respondents did not challenge individual items in Schedule A does not mean that they might not have taken a different approach in relation to the new allegations if given adequate opportunity to do so. For example, the respondents have pointed out that there were three people working in the City Office. Mr Hacker may have wished to examine whether he personally provided tax agent services to the 478 clients. It cannot be determined that the respondents are not prejudiced by the proposed amendments. 51 The applicant has provided an explanation for seeking the amendments and its delay in doing so, namely that a simple mistake was made and was not picked up earlier. But I do not think that is an adequate explanation. The applicant has been represented by lawyers throughout the proceeding and, even if the making of the original mistake is understandable, it should have been discovered well before the close of evidence in the trial. 52 The refusal of leave to amend would mean that the applicant cannot pursue all the allegations it wishes to pursue. On the other hand, the effect of the amendments would be to allow the applicant to make hundreds of new substantive allegations of contraventions of s 50-5(1) of the TAS Act. The application has been made, not just at a late stage, but after the close of evidence. The explanation for the applicant's delay is inadequate. Further, there may be prejudice to the respondents by reason of their inability to investigate the new allegations. 53 In these circumstances, the application for leave to amend should be refused. Accordingly, the case must be determined on the basis of the Current Pleading.

Contraventions alleged against OSGS 54 In the course of submissions, senior counsel for the applicant indicated that the applicant was not pursuing any case based upon the clients and transactions set out in Schedule A of the Current Pleading, except the Affidavit Allegations. 55 In respect of the Affidavit Allegations pursued by the applicant, OSGS admits the following contraventions of s 50-5(1) of the TAS Act: No. Date Tax Agent Service Client Fee 1 12.09.2018 2018 Income Tax Return (ITR) Jung, Yuri $187 2 06.03.2019 2018 ITR Lore, Palwinder Singh $132 3 14.03.2019 2018 ITR Park, Jeremy Jihyuk $132 4 19.03.2019 2018 ITR Shaikh, Mohammed Rizwan $132 5 12.09.2018 2018 ITR Wong, Wai Kam $132

56 I find that OSGS contravened s 50-5(1) of the TAS Act by providing these five tax agent services. 57 There is an unexplained discrepancy between an Agreed Statement of Facts in which OSGS admits it provided unregistered tax agent services to Suryati Vulker on 31 October 2018 (and which was amongst the allegations said by senior counsel for the applicant to have been admitted) and a Schedule of Contraventions filed at the end of the hearing. The latter omits that service from the list of OSGS' admitted contraventions. In view of the difficulties the applicant has had, I will assume that the more recent document is the more accurate document and that allegation is not pursued. 58 OSGS contests a single allegation, namely the allegation that it provided an unregistered tax agent service to Wai Kam Wong on 22 September 2017. OSGS submits that the evidence does not allow an inference to be drawn that it was OSGS which provided the service. 59 Mr Wong deposes that on about 26 September 2017, he saw Mr Hacker at the City Office. Mr Hacker prepared his 2017 income tax return. Mr Wong deposes that Mr Hacker charged him a fee of $132, but Mr Wong does not specifically recall how he paid the fee, or whether he was provided with a tax invoice. 60 The applicant submits that the evidence discloses a pattern where a customer who attended the Stafford Office was charged for the service by Naleview, and a customer who attended the City Office was charged by OSGS. The applicant submits that as Mr Wong went to the City Office, it should be inferred that he was charged by OSGS. Further, in respect of his 2018 income tax return, the evidence clearly demonstrates that he was charged by OSGS. The applicant submits that it should be inferred that he was also charged for preparation of his 2017 income tax return by OSGS. 61 OSGS submits that Mr Wong's name does not appear in the City Office Clients tab of the 2016/17 Spreadsheet, and this indicates that he was not a client of OSGS. The applicant submits, in response, that the latest date in the City Office Clients tab is 14 July 2017, whereas Mr Wong attended around 26 September 2017, so that it should be inferred that the tab was not updated after 14 July 2017. However, OSGS points out that the Spreadsheet has the title, "File 2 - List of People Lodged (for Tax Return 2017) Updated 01-11-2017", suggesting that the Spreadsheet was updated at that date. 62 Mr Wong deposes that he was charged a fee by Mr Hacker for preparation of his 2017 income tax return. He does not claim to have been charged a fee by OSGS for that service. This is in contrast to his evidence that he was charged a fee by OSGS for his 2018 income tax return. I am not prepared to infer that every client who saw Mr Hacker at the City Office was charged by OSGS. The sample available from the affidavits is too small to allow such an inference to be drawn. There is also evidence that some 49 other companies used the City Office as their registered address. Further, the fact that Mr Wong is not listed in the City Office Clients tab, despite the Spreadsheet apparently having been updated after he attended there, raises substantial doubts as to whether he was charged a fee by OSGS. The applicant has not produced any invoice or any banking records that demonstrate that OSGS was paid in respect of that service, despite being able to produce such records in relation to other clients. I am not satisfied on the balance of probabilities, bearing in mind the Briginshaw standard, that OSGS provided tax agent services to Mr Wong.

Contraventions alleged against Naleview 63 Naleview admits No. Date Tax Agent Service 1 15.09.2018 2018 ITR 2 25.08.2015 2015 ITR 3 17.08.2016 2016 ITR 4 20.08.2017 2017 ITR 5 19.08.2016 2016 ITR 6 25.07.2017 2017 ITR 7 21.08.2018 2018 ITR 8 24.09.2018 2018 ITR 9 31.07.2016 2016 ITR 10 22.07.2017 2017 ITR 11 13.07.2018 2018 ITR 12 13.10.2017 2017 ITR 13 31.10.2018 2018 ITR 14 24.09.2018 2018 ITR 15 29.09.2018 2018 ITR 16 18.12.2018 17 13.09.2018 18 19.08.2017 2017 ITR 19 12.08.2017 2017 ITR 20 29.09.2018 2018 ITR 21 31.07.2016 2016 ITR 22 22.07.2017 2017 ITR 23 16.07.2018 2018 ITR 24 26.08.2018 2018 ITR 25 20.08.2016 2016 ITR 26 18.08.2017 2017 ITR 27 28.09.2018 2018 ITR 28 08.07.2018 2018 ITR 29 24.10.2018 2018 ITR 30 24.10.2018 2018 ITR 31 11.07.2016 2016 ITR 32 08.07.2017 2017 ITR 33 15.09.2018 2018 ITR the following contraventions of s 50-5(1) of the TAS Act: Client Fee Mary Ann, Abelita $121 Desley Frances, Anderson $110 Desley Frances, Anderson $110 Desley Frances, Anderson $110 Arandela, Michael $110 Arandela, Michael $110 Arandela, Michael $121 Becker, Ana Crolina $121 Bergin, Julie Fay $110 Bergin, Julie Fay $110 Bergin, Julie Fay $110 Camacho, Mark $110 Camacho, Mark $121 de Paulo, Claudemir Ferreira $121 Ewnetu, Gebeyaw $121 Amendments to 2018 ITR and/or voluntary disclosure form Fitzgerald, Edelmira de Leon $55 2017 ITR and 2018 ITR Giri, Nirmal $242 Gregas, Gary $110 but refunded on 19.01.2019 Gregas, Maricris $110 Gregas, Maricris $121 but refunded on 19.01.2019 Harte, Leith Ann $110 Harte, Leith Ann $110 Harte, Leith Ann $121 Hlawn-Maul, Sui Te $121 Kerr, Jeffrey Scott $110 Kerr, Jeffrey Scott $110 Kerr, Jeffrey Scott $121 Law, Sarath $121 Poudel, Prakash Raj $121 Poudel, Rukmani Adhikari $121 Stewart, Katie Jane $110 Stewart, Katie Jane $110 Vulker, Suryati $176

64 Again, there are unexplained discrepancies between the Agreed Statement of Facts and the more recent Schedule of Contraventions. I have assumed that the more recent document is more accurate. 65 There is a dispute about whether one unregistered tax agent service or two were provided to Nirmal Giri on 13 September 2018. Mr Hacker prepared his income tax returns for both 2016/17 and 2017/18 on the same day. Mr Giri was charged a fee by Naleview for each return. It is conceded that these were tax agent services. I infer that the tax agent services were the provision of advice about Mr Giri's liabilities, obligations and entitlements under a taxation law. I infer that separate advice must have been provided in respect of each income tax return, since the income and deductions were different for each year. In my view, Naleview provided two separate tax agent services for two separate fees and two contraventions arise. 66 I find that Naleview contravened s 50-5(1) of the TAS Act by providing the 34 tax agent services set out above. 67 Naleview disputes the allegation that it provided unregistered tax agent services to John Paul Anderson. The applicant alleges that Naleview provided tax agent services to Mr Anderson on three occasions. The first was on an unspecified date, the second on 17 August 2016 and the third on 20 August 2017. 68 Mr Anderson has not provided an affidavit. The applicant relies upon an affidavit of Desley Frances Anderson, the wife of Mr Anderson. Ms Anderson deposes that her first contact with Mr Hacker was in 2015. She and her husband went to Mr Hacker's Stafford Office. Ms Anderson deposes that Mr Hacker completed her 2015 income tax return and also completed her husband's 2015 income tax return. Ms Anderson also deposes that Mr Hacker prepared income tax returns for her and her husband for 2016 and 2017. She paid "Tawa Trading Company Stafford QL Aus", a business name used by Naleview, for the preparation of each return. 69 Naleview submits Ms Anderson's evidence is unreliable because it is unclear whether her knowledge of Mr Hacker completing her husband's tax returns is based on hearsay. The difficulty with that submission is that Ms Anderson's affidavit was admitted into evidence without objection. The effect of s 56 of the Evidence Act is that once that evidence was admitted, it was admitted for general purposes: see Australian Securities and Investment Commission v Rich (2004) 213 ALR 338; [2004] NSWSC 1062 at [25]. As Ms Anderson was not cross-examined, her evidence was uncontested. 70 It is evident from Ms Anderson's affidavit that she and her husband attended Mr Hacker's Stafford Office together on each occasion and saw Mr Hacker together. The inference to be drawn is that Ms Anderson's evidence was given by reference to her own observations. Even if it is hearsay, I would find her evidence to be reliable in the absence of any challenge to that evidence through objection or cross-examination. I find that Naleview provided unregistered tax agent services to Mr Anderson for fee or reward in respect of his 2015, 2016 and 2017 income tax returns in contravention of s 50-5(1) of the TAS Act.

Contraventions alleged against Mr Hacker 71 The applicant alleges that the unregistered tax agent services provided by OSGS and Naleview were also provided by Mr Hacker in contravention of s 50-5(1) of the TAS Act. 72 The applicant further alleges that Mr Hacker provided unregistered BAS services for reward on three occasions. 73 I will deal first with the allegations that Mr Hacker provided unregistered tax agent services in contravention of s 50-5(1) of the TAS Act. He contests those allegations on two bases. First, he submits that where OSGS or Naleview have been found to have contravened s 50-5(1) of the TAS Act in respect of a particular tax agent service, he cannot be found to have also contravened that section by his provision of the same service. Second, he contends that the applicant has not proved that he received a fee or other reward for providing the tax agent services. I will consider each of these issues in turn.

Whether Mr Hacker can be found to have contravened s 50-5(1) of the TAS Act by providing the same tax agent services as those constituting the contraventions by OSGS and Naleview 74 Mr Hacker submits that in respect of each tax agent service provided, either he or the company involved can be found to have contravened s 50-5(1) of the TAS Act, but not both. He describes the applicant's approach of alleging contraventions against both as taking, "two bites at the one cherry" and seeking to, "kill two birds with one stone". He points out that there is no provision in the TAS Act for accessorial liability. He submits that the use of the word "you" in s 50-5(1) is cast in the singular and demonstrates that the provision does not contemplate joint liability for the same act. He submits that the provision, as a civil penalty provision, should be construed strictly. Mr Hacker contends that there is no legal basis for finding that two persons are directly liable in respect of precisely the same conduct. 75 The applicant submits that as a matter of construction of s 50-5(1), an individual who provides tax agent services and a company which provides tax agent services through the individual may each be found to have contravened the provision, provided that all the elements are satisfied in respect of each of them. The applicant submits that there is no support in the legislation or the authorities for any proposition that either the individual who had provided the services, or the company which provided the services through the individual can be liable, but not both. 76 It is not necessarily wrong or unfair for a company and an individual to each be prosecuted for the same conduct. In Hamilton v Whitehead (1988) 166 CLR 121, the High Court observed at 128: Franklyn J. thought that it was "wrong and oppressive" to prosecute the respondent for the identical acts and decisions as were relied on as the acts of the company. There is nothing conceptually wrong in such a course since "it is a logical consequence of the decision in Salomon s Case [1897] A.C. 22 that one person may function in dual capacities": Lee v. Lees Air Farming Ltd [1961] A.C. 12, at p. 26. 77 In Hamilton v Whitehead, the High Court went on to agree with the following passage from the judgment of Bray CJ in The Queen v Goodall (1975) 11 SASR 94 at 99-100: However, an argument was addressed to us on the abstract question of whether a director who controls or is one of the controllers of a company can be said to aid and abet the commission of a crime by the company by the same act or conduct which constitutes the commission of the crime by the company itself. If the legal existence of the company as a juristic person entirely separate and apart from the existence and the legal personality of its members is strictly insisted on, I do not see why he cannot. If this involves some sort of metaphysical bifurcation or duplication of one act by one man so that it is in law both the act of the company and the separate act of himself as an individual, so be it. 78 The question of whether an individual and a company can both be found to have contravened s 50-5(1) of the TAS Act arising from the provision of the same tax agent service must depend upon the proper construction of the provision. 79 The language used in s 50-5 and elsewhere in the TAS Act is unusual. It speaks in the second person, whereas legislation is usually expressed in the third person. It uses the pronoun, "you", rather the usual expression, "a person". The word "you" may be applied in both the singular and plural form, but in the context it applies more naturally to a single entity. On its face, it is capable of referring to a company as well as natural persons. The effect of the provision is that a person or company contravenes the provision if that person or company is shown to have satisfied each of paragraphs (a)-(e). 80 The language of s 50-5(1) of the TAS Act suggests that it is capable of being breached by both an individual and by a company in respect of the provision of the same tax agent service. The issue becomes whether there is anything in the context to suggest that the provision should be construed more narrowly. 81 Paragraph (a) of s 50-5(1), provides that, "you provide a service that you know, or ought reasonably to know, is a tax agent service". This paragraph requires, firstly, that the person or company have provided a tax agent service, and, secondly, that the person or company knew, or ought reasonably to have known, it was a tax agent service. The definition of "tax agent service" in s 90-5(1) refers to ascertaining, or advising about, liabilities, obligations or entitlements under a taxation law, or representing an entity in their dealings with the Commissioner. Such a service is capable of being provided by a company through an individual employee, director or agent. At the same time, the individual employee, director or agent may himself or herself provide such a service even though he or she is acting for or on behalf of the company. 82 Section 50-5(1)(d) requires that, "you are not a registered tax agent". The term "registered tax agent" is defined in the Dictionary at s 90-1 of the TAS Act to mean an entity that is registered under the TAS Act as a registered tax agent. 83 Part 2 of the TAS Act deals with registration as a tax agent, BAS agent or tax (financial) adviser. It is convenient to refer only to registration as a tax agent in the discussion that follows. 84 Section 20-5 provides that individuals, partnerships and companies are eligible for registration as a tax agent. Section 20-20(1) provides that, "you" may apply to the Board for registration. Under s 20-30(1), the Board is required to notify, "you" in writing of its decision. Under s 20-45, a number of events are set out that may affect "your" continued registration, including that "you" become an undischarged bankrupt or go into external administration. It follows that where the word, "you" is used in provisions dealing with registered and unregistered tax agents, it refers to individuals and to companies. 85 Under s 20-5 there are particular eligibility requirements for registration. For example, under s 20-5(1) an individual must be a fit and proper person, must maintain professional indemnity insurance and must have completed continuing professional education that meets the Board's requirements. Under ss 20-5(2) and (3) each partner or company director must be a fit and proper person and maintain suitable professional indemnity insurance. 86 Under s 30-5, the Code of Professional Conduct applies to a registered tax agent. Section 30-15 provides sanctions for failure to comply with the Code. Sections 40-5, 40-10 and 40-15 provide for the termination of registration in particular circumstances. 87 It may be seen that the TAS Act establishes a comprehensive scheme for registration of individuals, partnerships and companies as tax agents and for their conduct and discipline. It also provides, in Pt 5, Div 50, Subdiv 50-A for the punishment of individuals and companies who are not registered tax agents providing tax agent services for reward. These provisions are consistent with the object of the TAS Act in s 2-5 of ensuring that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. 88 Subdivision 50-A has the heading, "Conduct that is prohibited without registration". Section 50-5 appears in that subdivision. It may be seen that s 50-5(1) prohibits certain individuals, partnerships and companies from providing tax agent services for reward while unregistered. Under ss 20-5(2) and (3), to be eligible for registration, a partnership or company must have, "a sufficient number of individuals, being registered tax agents, to provide tax agent services to a competent standard, and to carry out supervisory arrangements". The provision seems to contemplate that a partnership or company will employ, engage or otherwise "have" individuals who are registered tax agents to provide tax agent services; and that such registered tax agents may supervise other persons who provide services that are associated with, but do not amount to, tax agent services. 89 It may be seen that both a company and an individual employed or engaged by the company may be at once providing the same tax agent service. Where a company provides tax agent services for reward, both the company and the individual who is employed or engaged by the company to perform the services must be registered. If one is unregistered, then that company or that individual may contravene s 50-5(1). If each of them is unregistered, each may contravene s 50-5(1) in respect of the provision of the same service, where paras (a)-(e) are satisfied in relation to each of them. 90 Commonwealth Acts which establish civil penalty offences often have provisions which expressly provide for the act of an employee, agent or director of a company to be taken to be the act of the company and also provide for accessorial liability. Examples are found in ss 550 and 793 of the Fair Work Act 2009 (Cth) and s 139B of the Competition and Consumer Act 2010 (Cth) and ss 224 of the Australian Consumer Law. This means that both an individual and a company can be liable in respect of the same act. The TAS Act does not contain such provisions, and s 50-5 only imposes direct liability upon a person or company for a breach of that provision. The explanation seems to be that the public is considered to be adequately protected by making both individuals and companies who provide unregistered tax agent services for reward through such individuals directly liable for contraventions of s 50-5(1). 91 In my opinion, the language and legislative scheme of s 50-5(1) of the TAS Act demonstrates that when an unregistered individual employee, agent or director of a company provides a tax agent service for a fee or reward for or on behalf of an unregistered company which also charges a fee or receives a reward for that service, both the individual and the company may contravene the provision. It may be noted that it will not be the same offence because the individual and the company will have each breached their separate obligations to be registered. 92 Therefore, I reject Mr Hacker's submission that he cannot be found to have contravened s 50-5(1) of the TAS Act by providing the same services by which OSGS or Naleview contravened that provision.

Whether the applicant has proved that Mr Hacker received a fee or other reward for providing tax agent services 93 Mr Hacker's second basis for contesting the allegations of contravention of s 50-5(1) of the TAS Act is his contention that the applicant has not proved that he charged or received a fee or other reward for providing the tax agent services. 94 The applicant contends that Mr Hacker received a reward for providing each of the tax agent services. Naleview paid a wage to Mr Hacker in 2015/16, 2016/17 and 2017/18. The applicant submits that Mr Hacker was renumerated for providing tax agent services to Naleview's clients, for which Naleview charged and received fees. The applicant also submits that by Mr Hacker providing the tax agent services and causing money for those services to be paid by clients to the two companies, there was an increase in the value of the shares of those companies, which was for his benefit, and was a reward. 95 Mr Hacker points out that s 50-5(1)(c) of the TAS Act requires that the person charge or receive a fee or other reward, "for providing the tax agent service". He submits that this requires a direct connection between the receipt of the fee or other reward and the provision of the particular tax agent service. He submits that there is no evidence that the income he received from Naleview was in respect of the tax agent services he provided. He also submits that the connection between the asserted rewards and the provision of tax agent services was too remote. He submits that the provision does not contemplate a circumstance where the alleged contravener provides the tax agent service, but the payment is made to another party, and the alleged contravener receives some indirect benefit. 96 To reiterate, the applicant contends that in respect of unregistered tax agent services provided by Mr Hacker by which OSGS and Naleview contravened s 50-5(1) of the TAS Act, Mr Hacker also contravened that provision. These services are described at [55], [63], [65] and [70] above. 97 The affidavit evidence concerning the tax agent services provided by Mr Hacker and OSGS or Naleview is broadly similar. It suffices to describe one example. Jeremy Park deposes that he attended the City Office on 13 March 2019. Mr Hacker prepared an Excel spreadsheet in respect of his 2017/18 income tax return while asking him questions about deductions. A receptionist entered the details electronically and lodged the return online. Mr Park paid a fee of $132 by credit card. The receipt appears to have printed with the name, "One Stop Global Staff". It is apparent that Mr Hacker provided a tax agent service to Mr Park and caused payment for that service to be directed to OSGS. 98 The other affidavits demonstrate a similar pattern. On each occasion, Mr Hacker prepared an income tax return for a client and the client paid either OSGS or Naleview. 99 Mr Hacker is the sole director of OSGS. Naleview is the holder of the single share in OSGS. Mr Hacker is a director of Naleview. He holds half the shares in Naleview. Mr Hacker's income tax returns reveal that he received wages from Naleview in 2015/16, 2016/17 and 2017/18. 100 Section 50-5(1)(c) requires that, "you charge or receive a fee or other reward for providing the tax agent service". I will first consider Mr Hacker's submission that the word "for" requires a direct connection between the provision of the taxation service and the receipt by the alleged contravener of a fee or a reward. 101 Mr Hacker relies upon Saunders v Cadman (1990) 54 SASR 534, where Mullighan J considered a statutory provision which prohibited receipt of a fee or reward for unlicensed building services. His Honour held, at 537-538, that the provision required, "some sort of builder client relationship"; and, "a fee or reward for the doing of something by one person for another in exchange for remuneration of some form". Mr Hacker submits that these passages support the view that a direct connection is required. 102 However, the statutory scheme in Saunders v Cadman was quite different. It contained an exception which allowed an amount to be received where it was in the nature of wages. That exception indicated that the provision was aimed at receipt of a fee or reward under a builder/client relationship. In contrast, s 50-5(1) of the TAS Act makes no exception where a fee or reward consisting of wages is received. 103 The word "for" in para (c) of s 50-5(1) of the TAS Act requires a connection between the fee or other reward and the provision of a tax agent service. The width of a connecting word or phrase depends upon the statutory context. A particular word or phrase may require a narrow and direct connection in one context, while in a different context it may allow a wider and more indirect connection: see Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [106]. 104 Under the TAS Act, if a company provides tax agent services for reward then, subject to para (a) to (e) of s 50-5(1), it must be a registered tax agent. Further, if a company employs persons to provide tax agent services and they receive a reward for doing so, they must also, subject to paras (a) to (e), be registered as a tax agent. Section 50-5(1), read together with s 20-5(3) and the provisions allowing registration of individuals as tax agents, indicates an employee may contravene the provision. An employee will ordinarily receive a wage from his or her employer, not a fee directly from the taxpayer. Accordingly, the provision envisages that an indirect reward for provision of tax agent services may fall within s 50-5(1)(c). 105 It may be accepted that there is a limit to the remoteness allowed by the word "for". However, it cannot be construed as requiring that there must necessarily be a direct exchange of a fee or reward between the person receiving the tax agent service and the person who provides it. 106 The applicant alleges that the reward received by Mr Hacker for the tax agent services he provided was the increase in the value of the shares of OSGS and Naleview. Mr Hacker submits that there is no evidence of an increase in their value and, in any event, any such increase is too indirect and remote. 107 The Macquarie Dictionary defines "reward" as, relevantly, "something given or received in return or recompense for service, merit, hardship, etc.". In Saunders v Cadman, Mullighan J applied an observation made by King CJ in Jackson v Crosby (1977) 16 SASR 1 at 4, that "reward" is a word of wide meaning. 108 In my opinion, where an individual who provides a tax agent service causes the client to pay a company for the service, and the individual holds shares in the company, the increase in the value of the shares created by the payment may be regarded as a "reward for providing the tax agent service" received by the individual for the purposes of s 50-5(1)(c). Otherwise, an individual performing unregistered tax agent services could avoid sanction by the device of directing payment to a company in which he or she holds shares. A narrow construction of the provision would be inconsistent with the protective purpose of the TAS Act. 109 I infer that when Mr Hacker provided tax agent services to clients and caused them to pay OSGS or Naleview for his services, he intended to obtain a financial benefit for himself. It is inherently unlikely that Mr Hacker would otherwise provide tax agent services to strangers. Mr Hacker is an ultimate beneficiary of the fees paid, as a shareholder in Naleview, which is the sole shareholder in OSGS. Each payment increased the assets of OSGS or Naleview and therefore increased the value of Mr Hacker's shares in Naleview to some extent. I therefore find that Mr Hacker received a reward for providing tax agent services for reward in respect of each payment for the services described at [55], [63], [65] and [70] above. 110 The applicant also relies upon the payment of wages to Mr Hacker by Naleview. Mr Hacker submits that the evidence does not demonstrate that the wages paid were for the tax agent services he provided to clients of Naleview. 111 However, some inferences may be drawn from the known facts. Mr Hacker admits that he provided tax agent services. Those services consist of advice given in the course of preparation of income tax returns for clients, for which the clients paid Naleview. Again, the giving of such advice and preparation of income tax returns for strangers is an activity that would not usually be done without the expectation of remuneration or other reward. 112 Brendan Walker-Munro, an officer of the Australian Taxation Office, deposes that on 18 October 2018, Mr Hacker said that his position as secretary, shareholder and office-bearer in various companies permitted him to represent them in dealings with the ATO and he charged an accounting fee for his service. In that discussion, Mr Hacker did not specifically refer to Naleview as being one of those companies. Further, he received a wage from Naleview, not any payment received as an "accounting fee". The evidence does not allow an inference to be drawn that the wage received by Mr Hacker from Naleview was for representing Naleview in its dealings with the ATO. 113 This is not a case where there are merely conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture: cf Jones v Dunkel (1959) 101 CLR 298 at 304; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162; Trustees of the Property of Cummins (a Bankrupt) v Cummins (2006) 227 CLR 278 at [34]. I infer that at least part of Mr Hacker's wages from Naleview was for advice given in the course of preparation of income tax returns for Naleview's clients. I find, for this additional reason, that Mr Hacker received a reward for providing each of the tax agent services that constitutes Naleview's contraventions of s 50-5(1) of the TAS Act.

Whether Mr Hacker provided unlicensed BAS services for reward 114 The applicant alleges that Mr Hacker provided unlicensed BAS services for reward on three occasions in contravention of s 50-5(2) of the TAS Act. 115 The applicant relies on the affidavit of Mark Jacob Comacho, who deposes that he attended the Stafford Office on about 13 October 2017 and that Mr Hacker prepared his 2016/2017 income tax return and his quarterly BAS returns for the periods ended 31 March 2017, 30 June 2017 and 30 September 2017. Mr Hacker agreed to charge $50 per BAS return. Mr Comacho signed the blank BAS forms and left them with Mr Hacker. I infer that Mr Hacker subsequently completed and submitted the forms. Mr Camacho deposes, "Although I cannot recall the precise timing or amount of my payment to Mr Hacker, I think the amount I paid for the three BAS was a total of approximately $150, which I paid in cash". I infer that the amount was paid to Naleview, since there is evidence that Mr Comacho paid Naleview for the preparation of his 2016/17 and 2017/18 income tax returns. 116 Mr Hacker submits that the applicant has not proved, as is required by s 50-5(2)(a), that he knew, or ought reasonably to have known, that each service was a BAS service within the meaning of s 90-10. 117 I do not accept Mr Hacker's submission. It does not seem to be in dispute that the services that Mr Hacker provided were BAS services. They included ascertaining Mr Comacho's liabilities, obligations or entitlements under a BAS provision, when Mr Comacho could reasonably be expected to rely on this service to satisfy liabilities or obligations, or claim an entitlement, under a BAS provision. Mr Hacker represented that he was able to assist Mr Comacho with his BAS returns, had Mr Comacho sign the blank BAS forms, and completed and submitted them to the ATO. Mr Hacker caused Mr Comacho to be charged a fee for his services. I infer that Mr Hacker knew that each service was a BAS service. Even if that conclusion is wrong, he ought reasonably to have known that it was. 118 Mr Hacker also submits that Mr Comacho's evidence is too vague to prove that he paid any fee. I do not accept that submission. The uncertainty expressed by Mr Comacho concerned the amount he paid and the timing of the payment. I do not understand him to express doubt about the fact that he paid for Mr Hacker's services in respect of the three BAS returns. Mr Comacho was not cross-examined and I accept his evidence. 119 My reasoning in respect of the receipt of a reward by Mr Hacker in respect of the tax agent services he provided also applies to his provision of BAS services. 120 I find that Mr Hacker provided three unregistered BAS services to Mr Comacho for reward in contravention of s 50-5(2) of the TAS Act.

Summary 121 I have found that OSGS contravened s 50-5(1) of the TAS Act on the five occasions described in para [55]. 122 I have found that Naleview contravened s 50-5(1) of the TAS Act on the 37 occasions described in paras [63], [65] and [70]. 123 I have found that Mr Hacker contravened s 50-5(1) of the TAS Act on the 42 occasions when OSGS and Naleview also contravened that provision. 124 Further, I have found that Mr Hacker contravened s 50-5(2) of the TAS Act on the three occasions described in para [120]. 125 I will make directions for a hearing on the issues of penalties and other relief. I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Tax Agent Services Act 2009(Cth)ss 2-5, 2-10, 20-5, 20-20, 20-30, 20-45, 30-5, 30-15, 40-5, 40-10, 40-15, 50-5, 60-15, 90-1, 90-5

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