FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Kim (No 2) [2015] FCA 263

FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Kim (No 2) [2015] FCA 263

CORRIGENDUM

1    Order 1 of the Orders dated 27 March 2015 should read:

‘In respect of the 158 contraventions of the Tax Agent Services Act 2009 (Cth) the respondent pay one pecuniary penalty in the amount of $4,000.’

Associate:

Dated:    31 March 2015

THE COURT DECLARES THAT:

1.    Between August 2010 and December 2010, in relation to the 20 taxpayers named in Schedule A in the statement of claim, the 30 taxpayers named in Schedule B in the statement of claim, and the 29 taxpayers named in Schedule C in the statement of claim, the respondent, by lodging income tax returns in respect of each of the taxpayers, while a registered tax agent, which lodgements were:

(a)    accompanied by explicit acknowledgments to the effect that; or

(b)    made subsequent to a prompt that the return should not be lodged unless;

(i)    the return had been prepared in accordance with the information supplied by the taxpayer;

(ii)    he had received a declaration from the taxpayer stating that the information provided to him was true and correct; and

(iii)    he was authorised by the taxpayer to lodge the return on behalf of the taxpayer;

when in fact, in respect of each return, none of those things in (b) above was the case, in each case recklessly made a statement to the Commissioner of Taxation (‘Commissioner’) which was false, incorrect and/or misleading in a material particular, in contravention of s 50-20 of the Tax Agent Services Act 2009 (Cth).

2.    Between August 2010 and December 2010, in relation to the 20 taxpayers named in Schedule A in the statement of claim, the 30 taxpayers named in Schedule B in the statement of claim, and the 29 taxpayers named in Schedule C in the statement of claim, the respondent by preparing and lodging income tax returns in respect of each of the taxpayers, while a registered tax agent:

(a)    which returns contained false, incorrect or misleading statements about material facts relating to employment, income, tax withheld amounts and spouse tax offset entitlements; and

(b)    in circumstances where:

(i)    the respondent had no dealings with any of the taxpayers regarding the preparation of any tax return and had not received declarations from the taxpayers stating that the information provided to the respondent was true and correct;

(ii)    the information provided to the respondent for the purpose of preparing the returns included amounts for tax withheld amounts that were significantly more than would in fact be the case given the applicable taxation rates; and

(iii)    the respondent had access to, and did not take steps to access, information held by the Australian Taxation Office by which he could have checked the veracity and accuracy of information supplied to him for the purpose of preparing the returns;

in each case recklessly made a statement to the Commissioner that was false, incorrect or misleading in a material particular, in contravention of s 50-20 of the Tax Agent Services Act 2009 (Cth).

THE COURT ORDERS THAT:

1.    In respect of the 158 contraventions of the Tax Agent Services Act 2009 (Cth) the respondent pay one pecuniary penalty in the amount of $3,000.

2.    The respondent pay the pecuniary penalty to the Commissioner on behalf of the Commonwealth of Australia.

3.    The respondent pay the applicant’s cost of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The respondent Mr Hansig Kim was, until 15 August 2013, a registered tax agent trading under the business name ‘Gateway Accounting House’ from premises in Strathfield. He ceased to be a registered tax agent on that day because the body charged with the supervision and discipline of registered tax agents, the Tax Practitioners Board (‘the Board’), had decided to terminate his registration from that date and to bar him from re-registering as a tax agent until 15 August 2016. It took this course because it concluded that his conduct as a tax agent warranted his removal from the register. The Board now seeks declarations regarding Mr Kim and to have a civil penalty imposed on him as well.

I. What was the conduct?

2    On a number of occasions between 13 August 2010 and 23 November 2010 Mr Kim was visited from time to time by unknown persons who asked him to prepare, in total, 79 income tax returns on the basis of information which they provided to him on behalf of identified taxpayers. The unidentified persons who consulted Mr Kim claimed to be acting on behalf of those genuine taxpayers. For the purpose of allowing him to prepare the returns these individuals provided Mr Kim with:

    PAYG (‘Pay as You Go’) payment summaries; and

    bank account details.

3    PAYG payment summaries are issued to employees for the purpose of preparing income tax returns. The information shown on these summaries includes the name of the employee, the employee’s tax file number, an address, the amount of tax retained from the employee’s salary in the relevant financial year and the employer’s Australian Business Number. The summary is signed by an ‘authorised’ person and is dated.

4    Unfortunately for Mr Kim, the summaries which the unidentified individuals provided to him for the 79 income tax returns were false documents and had resulted from an exercise in identity theft. That is to say, the names of the individuals on whose purported behalf the returns were to be prepared belonged to real individuals and the tax file numbers shown for them were the tax file numbers for those individuals. Everything else about the summaries was, however, false. In effect, they recorded bogus amounts of income and tax retained. The amounts of tax recorded as having been retained were sufficiently high in comparison to the gross amount earned that they would guarantee the payment by the Australian Taxation Office (‘ATO’) of a refund.

5    Perhaps unsurprisingly in that circumstance, the bank account details which were provided to Mr Kim were also false. The identity scam involved was, therefore, straightforward: real identities and tax file numbers were used to submit false tax returns which would then result in the Commissioner of Taxation paying refunds into the bank account details provided, which accounts were maintained by the scammers.

6    The more identities the scammers could obtain refunds for the more lucrative the scam was.

7    It was for this reason, no doubt, that the scammers reckoned that it would be best to lodge a large number of returns through a tax agent. Mr Kim was selected by the scammers as the tool by which this fraud was to be perpetrated. Why he was chosen is not known. Indeed, who the scammers were is not known (I return to the significance of this fact later in these reasons).

8    What is known, however, is that they provided Mr Kim with documents and information about 79 individuals for whom returns were to be lodged and that Mr Kim duly lodged the returns. This did not occur all at once and was spread out over an approximately three month period from 13 August 2010 to 24 November 2010. This involved several visits to Mr Kim by the scammers.

9    There is no dispute that Mr Kim did not meet any of the 79 taxpayers on whose behalf he filed the returns. Further, the scammers did not provide him with any purported written authority from the 79 taxpayers.

10    Indeed, what actually happened between the scammers and Mr Kim is not known. The parties were able to conclude an agreed statement of facts but it only records that ‘certain persons attended on the Respondent from time to time and asked him to prepare a large number of income tax returns’. Mr Kim swore two affidavits in the proceedings both of which were in evidence but neither of which tells one very much about what happened. I mention this because the Board submits that, even now, Mr Kim has chosen not to identify the scammers. I have found this a troubling aspect of the matter. It is quite possible that Mr Kim does not know who the scammers are or that the identities they provided to him were false or that their names would have proved no more than a dead end. In that regard, it seems unlikely that individuals perpetrating an identity fraud would use their own names.

11    The Board’s submission that Mr Kim had not revealed the name of the scammers was made in writing on 31 October 2014. Mr Kim’s responsive submissions were provided to the Court after this occurred so I am satisfied that he has had an opportunity to respond to the argument. It would have been possible for Mr Kim to have put on evidence that he did not know the identity of the scammers but he has not done so. Nor has he submitted that the Board’s argument that he has not revealed the identity of the scammers is not correct. In those circumstances, I should accept the Board’s submission. I conclude that, for whatever reason, Mr Kim has not revealed the identity of the scammers. This is a matter which is relevant to the extent of his co-operation with the Board.

12    On the other hand, there can be no escaping the implications of the fact that it is accepted by the Board that Mr Kim’s conduct was reckless rather than dishonest. I have found the resolution of this aspect of the matter not without difficulty but ultimately I have come to a view that it is logically possible for Mr Kim to have been reckless in what he did rather than dishonest and yet at the same time to have failed to provide the details of the scammers and that this could happen without him being complicit in the scam. One circumstance in which this could occur is where Mr Kim was the victim of a scam perpetrated by people he already knew and whose identities, for whatever reason, he does not now wish to reveal. It is on this basis I propose to proceed.

13    Mr Kim caused the lodgement of the 79 returns through the ATO’s electronic lodgement system. For each return Mr Kim completed a declaration that:

(i)    the return had been prepared in accordance with information supplied by the taxpayer;

(ii)    Mr Kim had received a declaration from the taxpayer stating that the information provided to him was true and correct; and

(iii)    he was authorised by the taxpayer to lodge the return on their behalf.

14    It is not in dispute that on all 79 occasions this declaration by Mr Kim was false. The certification process, obviously enough, was a measure directed at ensuring that precisely what happened in this case did not happen. Mr Kim’s willingness to make such a false declaration has resulted in substantial loss to the Commonwealth in fraudulently obtained refunds of $245,050.69. In fact, it could have been much worse. The ATO’s internal procedures detected irregularities with 39 of the returns and prevented any refund from being paid. Had those 39 refunds not have been stopped another $200,901.88 would have been lost. Mr Kim submitted that account needed to be taken of the fact that the loss had been principally caused by the scammers. The significance of this submission was that his role in the loss needed to be seen as subsidiary. I am disinclined to give this much weight. Undoubtedly, the scammers are serious criminals and their conduct much worse than Mr Kim’s. But the whole point of the declarations was to prevent the occurrence of exactly the crimes which were committed. In that context, it does not seem to matter very much that others had engaged in criminal conduct.

15    Mr Kim now admits that he has breached s 50-20 of the Tax Agent Services Act 2009 (Cth) (‘the Act’) which provides:

‘50‑20 Making false or misleading statements

You contravene this section if:

(a)    you are a *registered tax agent or BAS agent; and

(b)    you:

(i)    make a statement to the Commissioner; or

(ii)    prepare a statement that you know, or ought reasonably to know, is likely to be made to the Commissioner by an entity; or

(iii)    permit or direct an entity to do a thing mentioned in subparagraph (i) or (ii); and

(c)    you know, or are reckless as to whether, the statement:

(i)    is false, incorrect or misleading in a material particular; or

(ii)    omits any matter or thing without which the statement is misleading in a material respect.

Civil penalty:

(a) for an individual—250 penalty units; and

(b) for a body corporate—1,250 penalty units.’

16    The Board alleges, and Mr Kim agrees, that he contravened this provision 79 times in relation to the matters he certified because he was reckless as to the truth of what he was certifying. The Board also alleges, and Mr Kim admits, that he was reckless as to the contents of the actual returns themselves, that is, the amounts of income returned and the size of the amounts of tax said to have been withheld. The basis for this admitted allegation was Mr Kim’s failure to have any dealings with any of the taxpayers, the excessive size of some of the claims which would have been obvious on inspection and his failure to cross-check any of the information on-line with the ATO through the Tax Agent Portal. Had he done this the falsity of the payment summaries would have been revealed.

17    Section 50-20 is a civil penalty provision. This much is apparent from the fact that it prescribes a civil penalty and is contained in Part 5 which is entitled ‘Civil Penalties’. For an individual such as Mr Kim, the penalty is 250 penalty units per contravention. At all relevant times, a penalty unit was set at $110. Since Mr Kim has admitted to 158 separate contraventions the maximum penalty which could be imposed is $4,345,000.

18    Before assessing what an appropriate penalty would be it is necessary to say something more of the circumstances of Mr Kim’s contraventions. The first of these relates to his use of the ATO’s portal. Throughout the period relevant to these proceedings the ATO operated and managed a web-based database account system named the Tax Agent Portal. This operated from the ATO’s website and gave registered tax agents 24 hour on-line access to its information, functions and services. One service which the Portal is able to provide to registered tax agents is what is called a ‘pre-filling report’. When such a report was sought by an agent in respect of a particular taxpayer it could provide information about that taxpayer which the ATO had already collected through other means for that particular year. Thus, to give an example, when an employer had deducted income tax by instalments from an employee’s salary and paid this to the ATO under a PAYG return, and when that employee’s TFN had been provided, then the ATO would have a record of the payment. In the present case this mattered because if Mr Kim had done a pre-filling report for each of the taxpayers it would have indicated to Mr Kim these matters:

(i)    the taxpayer’s personal details (name, sex, address, etc);

(ii)    Australian residency status at the date of the report;

(iii)    PAYG payment summary information from employers; and

(iv)    the identity of any spouse at the end of preceding financial year and whether a spouse tax offset had been claimed in the previous financial year.

19    Matters (ii) and (iv) are relevant in this case because the 79 returns lodged by Mr Kim included a number of instances of irregular claiming of a spouse tax offset as well as returns filed for persons who had left Australia. In any event, the significance of (ii)-(iv) is essentially the same. If Mr Kim had consulted the Portal he would have seen that these 79 returns could not have been correct.

20    Why did Mr Kim not check the Portal? In his affidavit evidence he says that did not know about the existence of pre-filling reports until a later date when he was first interviewed by an officer of the ATO in relation to the contraventions on 29 March 2011.

21    The Board did not cross-examine Mr Kim to suggest that his evidence about this ought not be accepted. In that circumstance, I propose to proceed on the basis that, for whatever reason, Mr Kim was unaware of the availability of pre-filling reports. There was no material before me about:

    whether tax agents are required to know about pre-filling reports;

    what steps are taken to inform tax agents of pre-filling reports; or

    the steps generally taken to advise the profession about the facilities available to it from the Tax Agent Portal.

22    Despite that, it may be accepted that as a registered taxation agent it was Mr Kim’s business to know about the Tax Agent Portal. This is particularly so when pre-filling reports had been available since 30 June 2007.

23    The Board also contended that Mr Kim had made statements in the 79 returns which were incorrect and that he was reckless as to their truth (this was a different allegation to that concerning the false certification). About this there can be no doubt. That the returns contained false information is a necessary corollary of the scam which was being perpetrated by the rogues. Mr Kim did not himself know that the statements in the returns were false. Nevertheless, the Board contended, and Mr Kim agreed, that he had been reckless as to their truth. This recklessness was said by the Board to have three aspects to it:

(i)    Mr Kim had failed to make contact with the taxpayers;

(ii)    Mr Kim had failed to detect that several of the returns had included claims for amounts of income tax withheld that were much more than would be expected in the case of employees on the specified salary; and

(iii)    Mr Kim had failed to avail himself of the resources available at the ATO’s website such as pre-filling reports.

24    I accept the Board’s contention that Mr Kim was reckless in the way he completed the returns. It was reckless to complete tax returns for people he had not met at the instigation of third parties who proffered no authority to act on behalf of the taxpayers. This was a foolish thing to do.

25    I accept also that it was reckless of Mr Kim not to have checked the Tax Agent Portal. Whilst I accept that he did not know about the Tax Agent Portal, this was quite unacceptable for a registered tax agent.

26    The Board’s contention that Mr Kim was reckless because he did not notice that some of the amounts of income tax claimed to be withheld were disproportionate to the salaries earned is on the borderline. The Board’s contention was that many of the returns which Mr Kim had filed returned incomes of between $30,000 to $34,000. I accept this submission. The amount of tax which is normally withheld by an employee on that kind of salary is between $3,484 and $4,212. For most of the returns the amount claimed for the tax instalment deductions was between $6,000 and $8,000.

27    The Board’s point was that a registered tax agent would know that these amounts were too high and, therefore, that Mr Kim should have realised on first seeing the amounts claimed that something was amiss.

28    Mr Alexander of counsel, who appeared for Mr Kim, submitted that the Board’s submission was not so straightforward as it appeared. Although what the Board said about income levels and the amount of tax retained was generally correct it did not follow that it was correct in every case and there could be perfectly legitimate reasons why an individual taxpayer might be claiming what appeared to be excessive amounts of withheld tax. For example, a particular employee might only have worked for part of the year or might not have quoted a tax file number.

29    Whilst I accept the point being made, I do not think it detracts from the Board’s argument. Its point is partly based on the number of returns being filed which exhibited this feature. One or two returns having this feature could well be legitimate and a mere coincidence. Seventy nine such returns is, however, a different matter altogether.

30    By itself, I would still not conclude that this was sufficient to constitute recklessness. However, combined with Mr Kim’s failure actually to meet any of the taxpayers it contributes to an overall conclusion of recklessness.

31    The finding I make therefore is that Mr Kim did make statements in the 79 returns which were false. Further, I find that he made them reckless as to their truth. He was reckless because he did not meet the taxpayers, because the amounts being claimed for tax withheld were, viewed globally, obviously too high and because he did not consult the Tax Agent Portal.

32    I therefore accept the Board’s submission that Mr Kim has contravened s 50-20 158 times – one contravention for each of the 79 returns relating to his false certification and one contravention for each of the 79 returns relating to false information contained in the returns.

II. Principles

33    Although the authorities dealing with the imposition of a civil penalty under s 50-20 are confined so far to Jagot J’s decision in Tax Practitioners Board v Su [2014] FCA 731 and Edmonds J’s decision in Tax Practitioners Board v Li [2015] FCA 233 they are not in doubt. Above all, the penalty which is imposed must be proportionate to the wrong which has been done. But it must also operate as a deterrent both for other registered tax agents, so that they may know the consequences of breaching s 50-20, and also for the respondent, so that he may be personally dissuaded from any repetition of the conduct. In fashioning an appropriate deterrent this Court has repeatedly emphasised that the penalty must be such that it is not merely to be seen as another cost of doing business. It will be relevant to note in that regard that a civil penalty cannot be claimed as a deduction against assessable income. The respondent is entitled to have any early admission of wrongdoing brought to account, together with the benefit this confers upon the community by averting the cost which might otherwise be expended in his pursuit. So too, whilst they may perhaps not always be of great weight, the respondent is also entitled to have his personal circumstances brought to account. His degree of contrition is also to be assessed. Of course, many of these factors pull in different directions and the process of assessing the appropriate penalty is a process, not of mathematical precision, but instead of impressionistic reaction in the light of all the available relevant material as an ‘instinctive synthesis’. Where, as here, multiple contraventions arise out of a single course of conduct, different approaches may be warranted. These will depend on an assessment of the facts in the case. Here the conduct was effectively one episode of misbehaviour spread over some three months arising from Mr Kim’s unwitting dealing with one group of criminals. On the other hand, it had two distinct features to it: the false certification and the false contents of the returns. It seems to me that it is properly characterised as two sets of wrongs. At the end of the process of assessment, one then needs to stand back and to ask whether the penalty at which the Court has arrived is just and appropriate in all the circumstances.

34    So much for the general approach to the formulation of penalties.

35    What penalty should be imposed? The non-exhaustive list of matters set out by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52 152-52 153 has been extensively applied in this Court as a useful shopping list of matters relevant to the formulation of civil penalties. Those factors may, on occasion, need to be supplemented or reduced in the light of the particular statutory framework involved. In this case, the Act does not indicate expressly any mandatory considerations: see s 50-35. I consider the following matters relevant to the exercise of the sentencing discretion.

1. The nature and extent of the contravening conduct

36    It is admitted that there are 158 contraventions. The contraventions, however, fall into two categories: 79 instances of false certification and 79 instances of making false statements in returns filed by Mr Kim. I do not find, contrary to the Board’s submission at [15], that the conduct was deliberate. And, indeed, I do not really think that submission open on the material before this Court. Mr Kim did not know the scam in which he was playing an unwitting role. In my opinion there were two courses of conduct which should be sanctioned: making a false certificate and filing returns containing false information. These are separate wrongful acts although they arise out of the same factual sequence. The Board does not contend that Mr Kim knew that his certifications were false and is content to advance that part of its case on the basis of recklessness.

37    Be that as it may, Mr Kim’s actions have permitted a significant fraud to take place. If he had done his job properly the fraud would not have occurred.

2. The loss and harm arising from the conduct

38    The Commonwealth has been defrauded of $245,050.69 which it is unlikely to recover. This is a substantial sum of money. Moreover, but for the actions of the ATO a further amount of $200,901.88 would have been lost. Apart from the financial cost there have also been personal costs. A number of the taxpayers have had to have their tax file numbers reissued which has occasioned inconvenience to them. This is particularly so given the significance of tax file numbers as forms of identification. On the other hand, I reject the Board’s submission that the penalty should be fixed by reference to the loss suffered by the Commonwealth. No authority establishes the appropriateness of that course. Indeed, given the factual similarity of the instant case with Tax Practitioners Board v Li [2015] FCA 233, the use of the Commonwealth’s loss as a starting reference would seem inappropriate: see [112] per Edmonds J.

3. The circumstances in which the conduct took place

39    The Board submitted that Mr Kim recklessly participated in a species of identity theft. I consider that this puts the matter far too highly. Mr Kim was, whilst reckless, the instrument of the persons conducting the fraud and not their assistant. He did not, in any ordinary sense of the word, participate in the fraud. For his efforts he charged his normal modest fee of $50 per return for a total remuneration of $3,950. The Board submitted that his actions were ‘motivated by greed’. I accept that Mr Kim’s reckless behaviour was motivated by a desire to make profits from his business but this falls very far short of what I would call ‘greed’. I accept the Board’s submission that Mr Kim’s performance during the approximately three month period in question reveals a failure on his part to understand the important role that registered tax agents have in the self-assessment system. I reject the Board’s submission that Mr Kim’s recklessness is to be seen as an aggravating circumstance. As Jagot J has explained, it is difficult to see recklessness as an aggravating factor when it is a constitutive element in the underlying contravention: Tax Practitioners Board v Su [2014] FCA 731 at [17]. To similar effect, in the State context, is s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘The court is not to have additional regard to any such aggravating factor … if it is an element of the offence.’).

4. Prior record

40    Mr Kim has never done anything like this before.

5. The deliberateness of the conduct

41    The conduct was not alleged to be intentional but was reckless. I do not accept the Board’s submission that Mr Kim deliberately did not ask any questions to avoid finding out information he did not want to know. Such a finding would involve acting dishonestly which was not the Board’s case.

6. Matters personal to Mr Kim

42    Whilst Mr Kim does not resile from his admission that he made false statements recklessly, he does, for penalty purposes, seek to put what occurred in context. He says that he was satisfied that the taxpayers were authentic clients because of the bank account details which were provided with the income tax information by the scammers. He believed that in order to open a bank account one needed to have established one’s identity with some degree of certainty. It was not suggested to Mr Kim that his evidence about this was false and, therefore, I accept it. This evidence does not stand in the way of any finding of recklessness (indeed, it was not suggested that it did). It does show, however, that Mr Kim did turn his mind to the issue of whether the taxpayers were authentic. However, the means by which he did so were inadequate. It was quite erroneous to think that the bank account details provided any secure basis for concluding that the taxpayers were genuine clients. His conduct was, therefore, reckless, although I would locate this species of recklessness as less serious than recklessness constituted by not even asking oneself whether the taxpayers were genuine.

43    I turn then to Mr Kim’s personal circumstances. The first and most important of these is that the Board cancelled Mr Kim’s registration as an agent on 15 August 2013, thereby terminating his livelihood. On or about 23 March 2014 the Institute of Public Accountants notified Mr Kim of its intention to conduct a hearing of its Disciplinary Tribunal relating to the Board’s cancellation of his registration as a tax agent. In the face of this, Mr Kim did not renew his membership when it was due for renewal. The effect of the Board’s cancellation of his registration is that he will be unable to reapply for registration until August 2016. As a result of these events Mr Kim has had to close his business. He was unemployed for 10 months. On 1 July 2014 he found work as a bookkeeper. He has a wife and three daughters. He now earns about $650 per week after tax. His wife’s work as a part-time choir director earns $500 per week before tax. They receive some government assistance but plainly their position as a family of five is difficult. Mr Kim recently sold his car to support his family. They live in rental accommodation and have no substantive funds of which to speak.

44    There are some circumstances of Mr Kim which have made his removal from the register particularly hard, perhaps more so than in a usual case. Mr Kim and his wife came from South Korea in 1995 at which time he was 30 years of age. Whilst he had had a career in South Korea he was obliged in this country to start from scratch. It was not easy for him but through industry he was able to study and qualify as an accountant in 2001. He then worked for a registered tax agent until 2005 when he set up his own business. For the first four or five years the new business was a struggle and he was forced to clean offices to supplement his income. This appears to have ceased in March 2009 when the business had reached the stage where he was filing about 900 returns a year, including some partnership and company returns. I accept that this business was the crowning achievement of what had been a 15 year struggle for advancement.

45    I also accept the evidence of the psychologist, Dr Jung Sook Kim. Dr Kim thought that Mr Kim currently suffers from an adjustment disorder with depression largely related to an inability to discuss his feelings and his sole dependence on prayer. Indeed, Dr Kim believes this had affected him since 2005 when he set up the business. Dr Kim does not really suggest that this should be seen as an explanation for Mr Kim’s actions in filing the 79 returns, but it does highlight how severe losing his livelihood has been for him. There has been a great sense of shame for Mr Kim driven by Korean cultural values and his inability to fend for his own family. Further, at the age of 50 the future looks bleak to Mr Kim. I accept a submission made on Mr Kim’s behalf that his loss of registration has been especially hard on him.

46    For reasons I have already given, it is unlikely that Mr Kim has much capacity to pay any civil penalty I order. Authority establishes however that this does not really matter: Australian Competition and Consumer Commission v High Adventure Pty Ltd (2006) ATPR 42-091 (FC); Australian Securities and Investments Commission v Healey (No 2) (2011) 196 FCR 430 at 453-454 [122]-[124] per Middleton J. This is particularly so where, as here, the principal purpose of the penalty includes general deterrence.

7. Co-operation

47    Although Mr Kim eventually agreed that he had committed the contravention, this was not his initial position. Indeed, his initial position was to try and strike out the Board’s proceedings for want of standing. However, well in advance of any trial he admitted his wrongdoing and this has saved the public resources which would otherwise have been necessary to run the case.

48    On the other hand, there are some aspects which are troubling. When Mr Kim was first interviewed by the ATO he lied to the interviewing officer by claiming that he had met the 79 taxpayers. He did not admit this fact until the pleadings in this case were prepared and the terms of the agreed statement of facts settled. This is not full co-operation but it is some.

49    There is also the problem that Mr Kim has not identified the scammers or proved that he does not know who they are. This appears to me to be a significant matter.

50    The Board submitted that Mr Kim had not sought to rectify the harm he had caused. This was because he had not tried to contact the persons on whose behalf he had purported to act to tell them that their tax file numbers had been compromised. I accept this submission. In the circumstances, I propose to reduce Mr Kim’s penalty by 20% on account of his co-operation.

III. Orders

51    I proceed on the basis that what was involved was a single course of conduct involving two distinct contraventions. The maximum penalty the Court could impose is $4,345,000. I remind myself that the purpose of a civil penalty is general and specific deterrence. I see no great need to impose a civil penalty on Mr Kim to deter him in the future. I am more than satisfied that he will not do this again and that his contrition is real. In part this is because he is no longer a registered tax agent, although I acknowledge he may seek re-registration in 2016; principally, however it is because I believe he has learned his lesson.

52    That leaves the issue of general deterrence. It is important that the level of penalty fixed operates to encourage registered tax agents not to repeat the kind of conduct which Mr Kim has engaged in. However, that necessary deterrent must also be informed by the very important fact that Mr Kim has been removed from the register and lost his livelihood. In my view, this is the central issue and Mr Kim is entitled to a significant discount for it. So far as general deterrence is concerned, the profession already know Mr Kim has been struck off for what he has done. I do not think general deterrence requires that he should now be ruined as well.

53    In all of those circumstances I have decided to impose a penalty of $3,000 for Mr Kim’s false certification of the returns and $2,000 for the false information contained within them. This makes for a total of $5,000, which I reduce to $4,000 on account of his co-operation in eventually admitting his wrongdoing. Mr Kim will also have to pay the Board’s costs. I consider the Board’s proposed penalty of $222,976 to be wholly disproportionate in circumstances where he has already been struck off the register. I have compared the penalty I have imposed with that imposed by Jagot J in Su ($70,000 in seven instalments) and by Edmonds J in Li (nil). The penalty I have imposed reflects the lower level of wrongdoing involved in this case as compared with Su.

54    The declarations sought by the Board should be made.

Associate:

Dated:    27 March 2015