There are several civil penalty provisions in the Tax Agent Services Act 2009 (TASA) for tax and BAS agents (collectively referred to as tax practitioners). These civil penalty provisions can be grouped into two categories, those relating to:
conduct that is prohibited without registration
conduct of registered tax practitioners.
A civil penalty is a pecuniary (or monetary) penalty imposed by courts exercising a civil rather than criminal jurisdiction. State and Commonwealth government bodies can apply to the courts to have a pecuniary penalty imposed against an entity for breaching a civil penalty provision in some circumstances. Civil penalties do not include criminal convictions or imprisonment.
Penalty amounts
Penalties for breaching the civil penalty provisions are imposed in the form of penalty units. The current value of one penalty unit is $275.
The penalty amounts listed below reflect the current penalty unit value. For example, one penalty unit = $275, so 250 penalty units = $68,750.
Conduct prohibited without registration
You will breach a civil penalty provision if you are unregistered and:
Conduct |
Maximum penalty |
---|---|
you charge or receive a fee or other reward for providing a tax or BAS agent service* |
|
you advertise that you will provide a tax or BAS agent service* |
|
you represent that you are a registered tax or BAS agent |
*Note: Tax agent services include tax (financial) advice services.
Exemptions
The civil penalty provisions listed in the table above do not apply if you are:
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an employee who is providing a tax agent service to your employer for a salary, wage or other benefit
-
registered as a qualified tax relevant provider (QTRP) with the Australian Securities and Investments Commission
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a company or partnership providing tax (financial) advice services and you ensure every individual providing tax (financial) advice services on your behalf is registered either as a QTRP or a tax agent
-
a legal practitioner providing tax agent services as a legal service under the circumstances where you:
-
may lawfully provide the service under a State or Territory law regulating legal practice and the provision of legal services
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prepare or lodge a return like statement* in the course of acting for a trust or deceased estate as a trustee or legal personal representative.
-
The civil penalty provision listed in the table above do not apply if you are:
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an employee who is providing a BAS agent service to your employer for a salary, wage or other benefit
-
a customs broker licensed under Part XI of the Customs Act 1901, if the BAS service relates to imports or exports to which an indirect tax law applies
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a legal practitioner providing BAS services as a legal service under the circumstances where you:
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may lawfully provide the service under a State or Territory law regulating legal practice and the provision of legal services
-
prepare or lodge a return like statement* in the course of acting for a trust or deceased estate as a trustee or legal personal representative.
-
*These statements can include business activity statements, instalment activity statements, superannuation guarantee statements and pay as you go withholding payment summary or income statements
Conduct of registered tax practitioners
Making false or misleading statements
You will breach a civil penalty provision if you knowingly or recklessly (by inclusion or omission):
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make a false or misleading statement to the Commissioner of Taxation (Commissioner)
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prepare a false or misleading statement which you know, or should reasonably know is likely to be made to the Commissioner
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permit or direct an entity to make or prepare a false or misleading statement to the Commissioner.
Employing or using the services of deregistered entities
You will breach a civil penalty provision if you employ or use the services of a deregistered entity to provide tax practitioner services, when you know or should reasonably know:
-
that the entity is not currently registered but was previously registered, and
-
you first employed, or first used the services of, the entity within one year of its deregistration.
However, you will not breach a civil penalty provision if the entity’s registration was terminated because it surrendered its registration, became an undischarged bankrupt or went into external administration.
Signing of declarations
You will also breach a civil penalty provision if you sign a declaration or statement in relation to a taxpayer that is required or permitted under a taxation law, which was prepared by someone else who is not:
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a registered tax or BAS agent
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working under the supervision and control of a registered individual tax or BAS agent
Consequences of contravening a civil penalty provision
If you breach a civil penalty provision under the TASA, we may, within 4 years, apply to the Federal Court of Australia for an order that you pay a pecuniary (monetary) penalty. If the Federal Court is satisfied that a civil penalty provision has been breached, it determines an appropriate penalty, being no more than the penalty stated in the relevant civil penalty provision.
Once the Federal Court orders that a pecuniary penalty be paid, the penalty is payable to the Commissioner. The Commissioner can also enforce the order as if it were a judgment of the Federal Court.
If more than one civil penalty provision is breached, we may begin proceedings for breaches of any or all of the relevant civil penalty provisions, however only one pecuniary penalty will be imposed in respect of the same conduct.
Partners in a partnership
If a partnership breaches a civil penalty provision, each partner of the partnership at the time of the breach, is taken to have contravened the civil penalty provision. This is unless the partner proves that they:
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did not engage in the conduct
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did not aid, abet, counsel or procure the conduct
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were not in any way knowingly concerned in or a party to the conduct
Last modified: 9 February 2023