Federal Court of Australia

Tax Practitioners Board v Ke [2026] FCA 221

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 70-5(2) of the Tax Agent Services Act 2009 (Cth), until the hearing and determination of the originating application or further order, the Respondent be restrained from providing tax agent services for a fee or other reward, being the preparation and/or lodgement of any income tax return for a person or entity (as provided for in the Income Tax Assessment Act 1997 (Cth)) while not a registered tax agent, within the meaning of the Tax Agent Services Act 2009 (Cth).

2. Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1 The Applicant, the Tax Practitioners Board (the Board), commenced proceedings by way of an Originating Application filed on 30 July 2025 against the Respondent, Ms Ke.  By way of final relief, the Board seeks:

(1)    a declaration that Ms Ke contravened section 50-5(1) of the Tax Agent Services Act 2009 by providing tax agent services for a fee or reward whilst not being a registered tax agent within the meaning of the Tax Agent Services Act;

(2)    a pecuniary penalty in respect of the alleged contraventions;

(3)    a permanent injunction pursuant to section 70-5(1) of the Tax Agent Services Act 2009 restraining Ms Ke from providing tax agent services for a fee or reward whilst not being a registered tax agent within the meaning of the Tax Agent Services Act 2009; and

(4)    costs.

2 In the Originating Application, the Board also sought (in summary) the following interlocutory relief, being:

… interlocutory relief pursuant to section 70-5(2) of the Tax Agent Services Act, namely, that until the hearing and determination of the application or further order, the respondent be restrained from providing tax agent services for a fee or other reward whilst not a registered tax agent within the meaning of the Tax Agent Services Act.

3 However, at the hearing, clarification was sought from the Board’s counsel regarding the terms of the injunction sought.  It was submitted that the injunctive relief sought was more limited and consistent with that ordered in Tax Practitioners Board v Buckland (Interim Injunction) [2023] FCA 836 (Hespe J) that the Respondent be restrained from providing tax agent service for a fee or reward, being the preparation and/or lodgement of any income tax return, while not a registered tax agent.

4 The matter was originally listed for a case management hearing on 25 August 2025.  However, due to difficulties with service, that was adjourned until 29 September 2025.  On 29 September 2025, the Respondent appeared and the interlocutory hearing was set down for 24 November 2025.  This was a date that the Respondent advised she was available to appear and argue the interlocutory application.

5 The Respondent is self-represented.  The case management Orders required the Respondent to file any affidavits she wished to rely upon and a written outline of submissions, by 19 November 2025.  The Respondent did not file any material in accordance with those Orders.

6 When the matter was called on for hearing on 24 November 2025, the Respondent sought an adjournment for medical reasons.  The Board, on the basis of the evidence relied upon by the Respondent, did not oppose the adjournment sought.  Further timetabling orders were made and the matter listed for hearing of the interlocutory application on 3 February 2026.  By the time of the hearing, the Respondent had filed and served a written outline of submissions and an affidavit of herself upon which she relies.

7 In short, the Board submitted that they have established a prima facie case against the Respondent that she has performed tax agent services for persons and was paid a fee or charged a fee or reward for those services, those services being tax agent services within the meaning of the Tax Agent Services Act 2009 (Cth) (the TAS Act).  This is primarily, but not exclusively, on the evidence of six individuals who have provided affidavits about their dealings with the Respondent, and that of an investigations officer in the investigations and enforcement area of the Board.

8 In addition, the Board submits the balance of convenience favours granting the interlocutory injunction because it will not cause substantial prejudice to the Respondent to restrain her from providing tax agent services when she is not a registered tax agent within the meaning of the TAS Act, as she should not be providing such services if she is not registered.

9 The Respondent accepts that she is not currently a registered tax agent.  The Respondent's evidence is that she was previously a registered tax agent, with such registration commencing on 1 May 2005 and ceasing on 20 November 2017.  The Respondent disputes that she has been providing tax agent services.  The Respondent gives evidence that she has been performing some volunteer work in an accounting firm, being Amas Accounting & Finance Pty Ltd by way of administrative support tasks only.  The Respondent has never been a director, secretary or shareholder of Amas.  The Respondent provides some evidence of a medical condition which she says makes her unfit for paid employment during the relevant period.

10 For the following reasons, the interlocutory injunction as against the Respondent will be granted.  Those reasons can be summarised as follows:

(a) On a preliminary assessment of the evidence, the Board has established a prima facie case.  If the evidence remains as is, there is a fair probability that at the trial of these proceedings the Board will be entitled to final relief.  This is based on the current evidence, which is untested through cross-examination.  This does not, in any way, constitute a final conclusion of the outcome of the trial, where the evidence will be appropriately tested and the issues in dispute will be fully argued.  The Board will need to establish its case at trial on the balance of probabilities, not on the basis it has done for interlocutory relief.

(b) The balance of convenience lies in favour of granting the injunction.  The Board is seeking to protect the public interest.  The conduct as alleged by the Board is not based on an isolated occurrence.  The injunction sought during the hearing is specific and it does not prevent the Respondent from engaging in administrative support roles.  The legislation prohibits a person who is not a registered tax agent from, amongst other things, preparing and lodging tax returns.  As such, the balance of convenience favours granting the interlocutory injunction to protect the public from such conduct, if it was engaged in.

BACKGROUND

11 The Respondent was previously a registered tax agent with the Board from 1 May 2005 to 20 November 2017.  The Board, upon review of its records in or about late 2023, discovered that it appeared that the Respondent had lodged many income tax returns on or after 1 July 2021.  At that point, the Board conducted further investigations.  The Board subsequently contacted persons, some of whom have provided affidavits in these proceedings (the taxpayers), which reveal a number of things, including:

(a) the Respondent did not disclose her name to them, but did meet with them personally, and during those meetings, accessed their myGov accounts for the purposes of preparing and lodging their income tax returns;

(b) the Respondent charged a fee for the preparation and lodgement of income tax returns on behalf of at least the taxpayers who were issued with invoices by Amas;

(c) the payment of those tax invoices was made to a bank account ending 169 in the name of Amas (the 169 account);

(d) the Respondent completed the tax agent’s declaration in the name of another person (the Agent), used the registration number of the Agent and provided a copy of that declaration to the taxpayers;

(e) none of the taxpayers have ever known or dealt with the Agent; and

(f) none of the taxpayers have completed their own income tax returns or had someone else complete their income tax returns for the years which they give evidence.

12 The Board has also provided and relies upon an affidavit of the Agent.  The Agent’s evidence is that she has never provided tax agent services to any of the taxpayers, nor has she met with the Respondent nor had any dealings with her.  The Agent also gives evidence that she has never granted permission for the Respondent or another person to use her name or registration number.

13 The evidence of the investigations officer of the Board provides that the Respondent is both a cardholder and a signatory to the 169 account.  On an analysis of that account, it appears that there are more than 990 transactions which appear to be related to tax agent services during the period 1 July 2021 and 7 November 2024.

CONSIDERATION

Legislative Context

14 The object of the TAS Act is contained in s 2-5 and provides as follows:

Object

(1)    The object of this Act is to support public trust and confidence in the integrity of the tax profession and of the tax system by ensuring that *tax agent services are provided to the community in accordance with appropriate standards of professional and ethical conduct.

(2)    This is to be achieved by (among other things) providing for:

(a)    the registration and regulation, by a national Board, of entities that provide *tax agent services; and

(b)    a *Code of Professional Conduct for *registered tax agents and BAS agents; and

(c)    sanctions to discipline entities in relation to their conduct as a *registered tax agent or BAS agent; and

(d)    sanctions where tax agent services are provided otherwise than in accordance with this Act.

15 Hespe J in Buckland described the object at [10] as:

The object of the TAS Act is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct:  TAS Act section 2-5.

16 Section 2-10 provides the general guide to each part and relevantly provides in s 2-10(1) that a person needs to be registered to provide what are defined as “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.

17 Further, s 2-10(5) provides that:

(5)    Part 6 establishes the Board and sets out the Board’s functions and powers.  The Board may investigate breaches of the Act and has certain reporting obligations.

18 Section 1-15 provides that the Board, being the Tax Practitioners Board (s 90-1) established by s 60-5 has the general administration of the TAS Act.  The functions of the Board are provided for in s 60-15 which relevantly includes:

(a)    to administer the system for the registration of *registered tax agents and BAS agents, and:

(b)    to investigate:

(i)    applications for registration; and

(ii)    conduct that may breach this Act; and

(c)    to impose sanctions for non-compliance with the *Code of Professional Conduct; and

(d)    to issue, by legislative instrument, guidelines to assist in achieving the functions mentioned in paragraphs (a), (b) and (c); and

(e)    such other functions as are conferred on the Board by this Act, the regulations or any other law of the Commonwealth; and

(f)    to do anything incidental or conducive to the performance of its functions.

19 Section 90-5 of the TAS Act provides for the meaning of tax agent services as follows:

(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.

(2)    A service specified in the regulations for the purposes of this subsection is not a tax agent service.

Note:    For specification by class, see subsection 13(3) of the Legislation Act 2003.

20 Further, s 50-5 provides the following in relation to providing tax agent services if registered:

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.

Note    Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

(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.

Note:    Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

(3)    Subparagraph (1)(e)(ii) does not apply if you provide the *tax agent service as a legal service in the course of acting for a trust or deceased estate as trustee or *legal personal representative.

(4)    Subparagraph (2)(d)(ii) does not apply if you provide the *BAS service as a legal service in the course of acting for a trust or deceased estate as trustee or *legal personal representative.

(5)    If you wish to rely on subsection (3) or (4) in civil penalty proceedings, you bear an *evidential burden in relation to that matter.

21 Hespe J in Buckland at [13] described the preparation and lodgement of income tax returns (as that term is defined in s 995-1 of the Income Tax Assessment Act 1997 (Cth)) as a quintessential tax agent service, which is also consistent with the language in s 50-5(1)(e)(ii) of the TAS Act.  That section refers to a service consisting of preparing, or lodging, a return or a statement in the nature of a return.

22 In this regard, also see the observations of Rares J in Tax Practitioners Board v Shanahan [2013] FCA 764 at [9]-[10].

Relevant Legal Principles - Interlocutory Injunction

23 The relevant principles to be applied on an application for an interlocutory injunction were set-out in the Applicant’s submissions and were generally agreed with by the Respondent in her written submissions at [5].  These principles are well settled and were explained in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 generally at [65] to [71].  However, it is sufficient for the purposes of this case to only set out [65]:

Interlocutory injunctions

[65]    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

[footnote references omitted]

24 The general principles were also outlined by Hespe J in Buckland at [16] to [17], which I gratefully adopt as follows:

General principles

16    Most recently, the well-established principles for considering whether to grant an interlocutory (or as in this case, interim) injunction were expressed by Wheelahan J in the following terms (Avant Group Pty Ltd v Kiddle [2023] FCA 685 at [5]):

The organising principles for considering whether to grant an interlocutory injunction are well known. “[I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction”: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 (O’Neill) at [19] (Gleeson CJ and Crennan J). The two limbs are inter-related such that the strength of the plaintiff’s case may be relevant to the balance of convenience, and may tip the balance one way or the other.

17    The same principles apply to the grant of a statutory interim injunction: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2009) 189 IR 37; [2009] FCA 997 at [17] (per Barker J). See too, Milam v University of Melbourne (2019) 285 IR 309; [2019] FCA 171 at [8] (per Anastassiou J).

25 In addition to that, I also gratefully adopt the following propositions from Hespe J, which were in circumstances somewhat similar to this case, being those articulated by her Honour at [18]:

18    In the circumstances of this case, the following propositions are of particular relevance:

(1)    In determining whether there is a serious question to be tried (or to use the expression adopted by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, a prima facie case), it is necessary for the Court to -form a view about whether the applicant has shown there is a probability that it will be entitled to an injunction at trial.  “Probability” in this context does not mean that the applicant has more than a 50% likelihood of succeeding, but means only that if the evidence remains as it is there is a fair probability that the applicant will succeed: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 622 (per Kitto, Taylor, Menzies and Owen JJ).  How strong the probability needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the orders sought.

(2)    Whether there is a serious question to be tried or whether the plaintiff has made out a prima facie case is to be determined on the basis of the evidence remaining as it is, untested: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58; at 153 (per Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [13] (per Gleeson CJ); O’Neill.  The Court does not undertake a preliminary trial, or give or withhold interlocutory relief upon a forecast as to the ultimate result of the case: Beecham at 622 (per Kitto, Taylor, Menzies and Owen JJ).  An interlocutory application is not a dress rehearsal for a trial: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62; [2017] FCAFC 193 at [126] (per Perram J).

(3)    The balance of convenience looks to whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Beecham at 622 – 623 (per Kitto, Taylor, Menzies and Owen JJ).  In the present case, the injury which the applicant would be likely to suffer is not personal.  The injunction sought here seeks to restrain conduct that Parliament has considered to be contrary to public interest.  In the present context, it is that public interest which needs to be balanced against the interests of the respondent.

(4)    The two considerations of the serious question to be tried and the balance of convenience are interrelated.  The ultimate question is whether in the exercise of its discretion the Court should make orders in the terms sought.  That involves considering both the strength of the claims and the defences and, in simple terms, to decide what is best to be done based on the material before it: Avant at [9] (per Wheelahan J).

(5)    A material consideration in determining whether to grant injunctive relief is the clarity with which the orders sought are expressed, because the respondent would be entitled to know what she is prevented from doing, “and this means not as a matter of law but as a matter of fact”: Redland Bricks Ltd v Morris [1970] AC 652 at 666 (per Lord Upjohn). See also, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (per Lockhart J); Avant at [11] (per Wheelahan J).

26 Therefore, the assessment of the first consideration, being that the prima facie case must be made on the basis of the evidence as it is before the Court, requires the Court to determine whether it is more probable than not that at trial the Board would succeed should this evidence remain the same.  The assessment must consider whether the Board, has demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending the trial.  The consideration of the requisite strength of the probability of success in terms of the Board's claim to final relief depends on the nature of the rights asserted and the practical consequences likely to flow from granting the injunction sought.

27 The second consideration, related to the first, is whether the balance of convenience favours the grant of such relief.  This is whether the inconvenience or injury the Board in the circumstances of this case would be likely to suffer if the injunction was refused outweighs or is outweighed by the injury or inconvenience which the Respondent would suffer if the injunction was granted. As Hespe J identified in Buckland, it is important to keep in mind that the injury likely to be suffered by the Board in this case and similar cases is not personal.  The injunction sought is to restrain conduct which Parliament considers to be contrary to the public interest, and as such, it is that public interest which needs to be balanced as against the interests of the Respondent.

28 Ultimately, the decision to grant or withhold interlocutory relief requires an exercise of judicial discretion.

Prima Facie Case

29 For the Board to establish a prima facie case, it is necessary to consider the elements of s 50-5 of the TAS Act, which are (Buckland at [20]):

(1)    the respondent provided a service which was a tax agent service;

(2)    the respondent knew, or ought reasonably to have known, the service provided was a tax agent service;

(3)    the service is not a BAS service or a tax financial advice service;

(4)    the respondent charged or received a fee or other reward for providing the tax agent service; and

(5)    the respondent was not a registered tax agent.

30 The Board submits that based on the evidence before the Court in making its provisional assessment, the evidence as it stands is capable of supporting a finding that the Respondent has personally performed a tax agent service.  That tax agent service alleged to have been provided is the preparing and lodging of income tax returns of at least the six individuals who have provided affidavits in these proceedings.

31 The taxpayer’s evidence, which I have described in short compass above, can be enlarged as follows.

For a variety of income years spanning, relevantly, 2018 to 2023, some or all of the taxpayers dealt personally with the Respondent.

In the earlier years, all of the taxpayers dealt with the Respondent at a Salisbury address, and in more recent times, a Coopers Plains address.

All taxpayers contacted the Respondent on the same mobile telephone number, which the Respondent accepts is her telephone number.

The taxpayers all dealt with the Respondent in a similar way, by having them log into their myGov account, whereby they would then hand over the operational control of that computer so logged in, to the Respondent.

Whilst entering information into the computer, usually the Respondent would ask some questions.  Those questions were of a kind that might be asked while completing an income tax return.  For example, questions regarding work-related expenses and/or car-related work expenses.

Some taxpayers gave evidence that the Respondent informed them that she had lodged the tax return.

At the end of the process, the taxpayers were handed a document which the Respondent printed for them entitled Taxation Estimate.

The tax agent’s details at the end of the Taxation Estimate were not that of the Respondent, but were of the Agent.

The respondent also provided a tax invoice to each of the taxpayers which charged a fee for the preparation and lodgement of the income tax return.

The bank account, stated on the tax invoice issued, where the fee was to be paid and where the taxpayers did pay, apart from one who paid in cash, was the same, being the 169 account.

The 169 account is a bank account which the Respondent is a signatory for, but it is not a bank account in her name.  The 169 account is in the name of Amas.

The Board contacted each of the taxpayers and asked them to identify the Respondent by way of a photograph, which they did.  The person was identified as the person who prepared and lodged the relevant income tax returns.

Each of the taxpayers deposed they did not prepare the income tax returns themselves or ask anyone else to complete those income tax returns.

Each of the taxpayers deposed to not knowing the Agent whose details were on the Taxation Estimate form.

32 In addition, the Board also relies on the evidence of the Agent.  The Agent did not know or had ever heard of the Respondent until contacted by the police and then the Board.  The Agent never provided consent to use her registration number to provide tax agent services to the Respondent or to anyone else.

33 The evidence of the investigations officer of the Board provides, amongst other matters, an analysis of the 169 account, or at least in part.  The Respondent is a cardholder and a signatory on the 169 account.  There is a lengthy analysis which provides that there are more than 990 relevant transactions.

34 In terms of the first element, the Respondent denies that she has provided, during the relevant period when she was not a registered tax agent, any tax agent services.  The Respondent submits that the Board’s evidence is based on:

(a) possibilities;

(b) assumptions and not direct evidence; and

(c) that there was another unidentified person who was present and that the role of that person was unclear.

35 The reference to possibilities, as was accepted by the Respondent, was a reference to a defined term in the investigation officer’s affidavit of “the possible taxpayer clients”.  I do not regard this defined description as one which undermines the Board’s evidence, particularly not then when considered with the direct evidence of the six taxpayers and on this prima facie basis.

36 The Respondent’s submission regarding the Board’s case being based on assumptions and not based on direct evidence was based on the taxpayers’ evidence that they would log into their myGov accounts, would then turn the computer screen back around to the Respondent as they were seated on the opposite side of a desk.  It is assumed the Respondent prepared and lodged the income tax returns, but there is no direct evidence (as the computer screen was facing away from the taxpayers) so it is submitted.  This is contrary to the evidence of some of the taxpayers who state that the Respondent did prepare and lodge their returns.

37 However, it is not appropriate (or possible) to rule on which evidence I accept or do not accept, or to state which I prefer in the circumstances of this interlocutory injunction.  It is sufficient to record that if the evidence remains as it is, there is some direct evidence to support the Board’s position.

38 Finally, in relation to the other unidentified person in the room, some of the taxpayers do describe another person.  The taxpayers do not give evidence of direct engagement with that person, or that that person was at the same desk, or otherwise had any direct contact with the taxpayer.  It was for the Respondent in these circumstances then to put on this evidence, which she has not done.  The Respondent accepts that she was present and gives evidence that she assisted in an administrative support capacity.  The Respondent does not give evidence as to who she was supporting in that administrative role.

39 However, as already observed, I do not make any findings regarding the evidence.  It is sufficient to note that the Board’s evidence as it stands is capable of supporting a finding in relation to the first element, that the Respondent has personally performed tax agent services.  That is, if the evidence remains as it is, there is a probability that at the trial of these proceedings, the Board, as the Applicant, will be entitled to final relief.

40 In relation to the second element, the Respondent knew, or ought reasonably to have known, that the service, if provided, was a tax agent service.  The Respondent was previously a registered tax agent.  As such, I draw the inference that she would have known what a tax agent service was, and that a tax agent service would include preparing and lodging income tax returns.  Further, in the Respondent’s affidavit, she expressly refers to and annexes the definition of a tax agent service.  This would also support a preliminary assessment regarding the Respondent’s state of knowledge.

41 In relation to the third element, the conduct alleged relates to the preparation and lodgement of income tax returns, not a BAS service or a tax financial advice service.  This would satisfy this element.

42 The fourth element is whether the Respondent charged or received a fee or reward for providing the tax agent services.  The Respondent denied charging a fee or receiving a fee or other reward.  The Respondent also submitted that she could not recall handing over tax invoices.  However, some of the taxpayers do give evidence that the Respondent provided them with a tax invoice.  The Respondent submitted that the Board’s own bank analysis does not identify any direct payment made to the Respondent’s personal bank account.  The Board accepts that the evidence at the moment does not identify such payments, however, the Board submits that it is sufficient that the Respondent charged a fee for the tax agent services, and on a prima facie basis, that is sufficient to satisfy the fourth element.

43 In Tax Practitioners Board v Hacker [2020] FCA 1047, Rangiah J at [91] and [108] observed as follows:

[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.

…

[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.

44 The evidence considered on a prima facie basis supports a position that the Respondent provided at least some of the taxpayers with a tax invoice for the preparation and lodgement of the relevant income tax returns.  That tax invoice required payment into the 169 account.  The taxpayers paid for the preparation and lodgement of the income tax returns in the amount stated on the tax invoice by transfer of that amount into the 169 account.  The 169 account is in the name of Amas.  The Respondent is a cardholder and signatory to the 169 account.

45 Therefore, this evidence is capable of supporting a finding that amounts were paid for the preparation and lodgement of income tax returns by the Respondent by the transfer of funds in the amount of the tax invoices into a bank account which the Respondent was a cardholder of and signatory to.  Therefore, the payments were made into a bank account which the Respondent could control.

46 I agree with the observations of Rangiah J that a narrow construction would be inconsistent with the protective purposes of the relevant provisions of the TAS Act.  An individual performing unregistered tax agent services could avoid the operation of the TAS Act and sanction by using a device of having payments made into a bank account which was in the name of a different entity or person, but which that person could control.  That would be contrary to that protective purpose.

47 On the evidence and the authorities before me, on a preliminary consideration, I am satisfied that the Board has a prima facie case that the Respondent has contravened s 50-5 of the TAS Act.  Whether the facts as alleged by the Board will be established on the balance of probabilities and whether the Board will be entitled to final relief, is a matter for trial.

Balance of Convenience

48 I agree with the observations of Hespe J in Buckland at [44], that in assessing the balance of convenience the Court considers the risk of injustice should it turn out to be wrong.  That risk of being wrong in this context requires the Court to balance the risk that it will make a wrong decision to grant an interlocutory injunction to a party who fails to establish that right at trial, against the risk that the Court will make the wrong decision in failing to grant an injunction to a party who succeeds at trial.

49 The balance of convenience is to be determined having regard to the legislative framework of the TAS Act, and particularly s 70-5.  The object of the TAS Act is to support public trust and confidence in the integrity of the tax profession and the tax system by ensuring that tax agent services are provided in accordance with appropriate standards of professional and ethical conduct.  Those objects are sought to be achieved as provided for in s 2-5 of the TAS Act.

50 The nature of the alleged contraventions involved many matters, alleged to be some 990 from July 2021 to November 2024. Further there is separate evidence from each of the taxpayers, spanning multiple income years.  There is a prima facie history of contravening conduct.  There is also some evidence before the Court, and an inference can be drawn, which arguably supports the finding that if not restrained, the Respondent intends to continue to provide tax agent services in the form of preparing and lodging income tax returns whilst not being a registered tax agent.

51 The grant of an interlocutory injunction would advance the public policy and assist in the enforcement of the public interest, which is part of the objects of the TAS Act.  Further, the injunction now sought is of a narrow and specific form.  It relates only to the preparation and lodgement of income tax returns.  The Board accepted it would not prevent the Respondent from providing purely administrative assistance or services.

52 The Respondent submitted that an interlocutory injunction would cause her significant prejudice, including reputational harm, and a restriction of lawful activities.  In this regard, I also agree with the observations of Hespe J in Buckland at [48] (amended to apply to this case):

If [she] is not providing such services, it is difficult to accept that an injunction restraining [her] from providing such services causes [her] substantial prejudice when weighed against the public interest sought to be promoted by the TAS Act.

53 Insofar as the Respondent submits that this would restrict lawful activities, this is to misunderstand the limited and narrow compass of the injunction now sought.  The Respondent will not be restricted from undertaking purely administrative tasks should she so choose.

54 Finally, regarding her reputational harm, the Respondent did not provide any evidence of what this might entail.  Although this judgment may damage her reputation somewhat, she is no longer a registered tax agent and the assessment of the evidence is only on a prima facie basis.  The Respondent will be afforded a full opportunity to test the evidence at trial.

55 At trial, it is not yet known whether or not the Board will be successful in obtaining the final relief which it seeks.  As such, I do not accept that any suggested reputational harm tips the balance in the favour of the Respondent as opposed to favouring the public interest as advanced in the objects of the TAS Act.  The balance of convenience supports the granting of the interlocutory injunction.

56 Finally, in the circumstances of this case, I do not propose to require an undertaking as to damages from the Board because of the narrow and specific form of the injunctive relief sought.  It is limited to preventing the Respondent from preparing and lodging income tax returns for a fee or reward whilst unregistered.  On the face of the TAS Act, the conduct sought to be restrained, being the preparation and lodgement of tax returns, if engaged in by a person who is not a registered tax agent, is prohibited:  see Buckland at [52].

Associate:

Dated:    6 March 2026