Legal Practice Board v Computer Accounting and Tax Pty Ltd
Document type: Decision Impact Statement
Venue: Supreme Court (CIV 1106 of 2007)
Judgment date: 13 August 2007
Date published: 22 October 2007
Decision outcome: Not applicable - Commissioner not a party. Originating motion dismissed.

Summary of decision:
This decision involved the Legal Practice Act 2003 (WA). Simmons J dismissed the application, finding that the Respondent engaged in legal practice which would have been in breach of the Act, but section 123 under which the proceedings were brought was not applicable to corporations.

Overview of facts:
1. The Applicant brought an application against the Respondent for contempt under section 250 of the Legal Practice Act 2003 (WA) for preparing a trust deed. | 2. At all material times the Respondent company had two directors. One director was a registered tax agent and Fellow of the National Tax and Accountant's Association. Neither were legal practitioners. | 3. The Respondent advertised the preparation of trust deeds for $330 on its website. | 4. One of the directors obtained a pro-forma trust deed for self managed superannuation funds from an internet company. | 5. In her evidence, the director said she relied on advice from an officer of the superannuation section of the ATO that accountants could provide deeds to individual trustees in order to set up self managed superannuation funds on the basis of s 251L of the Income Tax Assessment Act 1936 . She also referred to page 31 of a book entitled "Self Managed Superannuation Funds DIY super", fact sheet No 2059 and a booklet entitled "Role and responsibilities of trustees" published by the ATO. | 6. In August 2006 the diector was asked to prepare a trust deed for a private or self-managed fund. She was paid $330 cash for the deed. | 7. There was no evidence that the deed was ever signed or that property was set aside or that any steps were taken to procure an ABN or TFN. | Issues decided by the court or tribunal | 1. Does the prohibition in s 123(1) of the Legal Practice Act , read if necessary with s 123(2), apply to corporations? No. | 2. If it does, was the conduct in this case engaging in legal practice within the Legal Practice Act , s 123(1) read with s 4(b) or (c)(i)? Yes however it was not necessary to decide. | 3. Was the respondent, directly or indirectly paid or remunerated or promised or expected payment or remuneration for that work within s 124(3)? Yes. | 4. Is it relevant that the director was induced, by statements of the Australian Taxation Office, to believe she, as an accountant who was a registered tax agent, could lawfully provide the trust deed? No.

Issues decided:
1. Does the prohibition in s 123(1) of the Legal Practice Act , read if necessary with s 123(2), apply to corporations? No. 2. If it does, was the conduct in this case engaging in legal practice within the Legal Practice Act , s 123(1) read with s 4(b) or (c)(i)? Yes however it was not necessary to decide. 3. Was the respondent, directly or indirectly paid or remunerated or promised or expected payment or remuneration for that work within s 124(3)? Yes. 4. Is it relevant that the director was induced, by statements of the Australian Taxation Office, to believe she, as an accountant who was a registered tax agent, could lawfully provide the trust deed? No.

ATO view of decision:
The ATO has undertaken a review of its current website and other guidance products covering superannuation matters and can confirm that none contain advice of the nature referred to in this decision. The main document referred to in the decision (NAT 2059) was removed during a regular review earlier this year. | Taxpayers who become aware of any inaccuracies in superannuation products or advice provided by the Australian Taxation Office are invited to contact the Australian Taxation Office in relation to that issue.

Administrative treatment:
None

Legislative references: Corporations Act 2001 (Cth) 9 206E Income Tax Assessment Act 1936 (Cth) 251L Interpretation Act 1984 (WA) s 5 Legal Practice Act 2003 (WA) s 3, s 4, s 27, s 45, s 47, s 48, s 69, s 70, s 75, s 76, s 86, s 87, s 123, s 124, s 125, s 250, s 253(2)(a) Legal Practitioners Act 1893 (WA) 77
Case references: Heedes v Legal Practice Board [2005] WASCA 166 Legal Practice Board v Frichot [2006] WASC 230 The Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 The Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335 Hoffman v Chief of Army (2004) 137 FCR 520 [2004] FCAFC 148 Legal Practice Board v Said [2002] WASC 35 Florida Bar v Town (1965) 174 So 2d 395 Re Matthews (1938) 79 P 2d 535 Green v Hoyle [1976] 2 All ER 633 Ostrowski v Palmer (2004) 218 CLR 493 R v Jorgensen [1995] 4 SCR 55
Subject references: Statutory contempt under Legal Practice Act, s 250 Corporation shown as public accountant and registered tax agent providing services for self-managed superannuation funds, including providing trust deeds Whether engaging in legal practice contrary to s 123(1) Whether s 123(1) applies to corporations Whether corporation engaged in legal practice within s 4(b) Whether corporation engaged in legal practice within s 4(c)(i) Whether defence in s 124(3) applied Whether reliance on advice in federal government publications relevant