The High Court on Fri 8.6.2012, refused the taxpayer special leave to appeal against the Qld Court of Appeal decision in Hart v Commonwealth Director of Public Prosecutions [2011] QCA 351. The Court of Appeal had dismissed an appeal by an accountant against a 30 November 2010 decision of the District Court of Qld which granted an application by the Commonwealth Director of Public Prosecutions for a pecuniary penalty order (PPO) that the accountant, Mr Hart, pay the Commonwealth over $14.7m pursuant to Pt 2-4 of the Proceeds of Crime Act 2002.
[LTN 110, 8/6]
CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – PECUNIARY PENALTY AND LIKE ORDERS – GENERALLY – where the appellant was a registered tax agent and principal of an accounting practice – where clients of the practice lodged income tax returns falsely claiming for moneys expended in the purchase of insurance bonds – where the appellant knew that the participants were not entitled to claim these expenses as a tax deduction – where the appellant was convicted of nine indictable offences of defrauding the Commonwealth – where the respondent CDPP made an application for pecuniary penalty orders to deprive the appellant of benefits derived by him from the commission of offences against the Commonwealth – where the appellant was found to have committed further offences against the Commonwealth involving unlawful activities – where the primary judge deducted the agreed refunds made by the appellant from the total benefits derived – where the appellant submitted that the primary judge relied on findings of fact not part of the prosecution’s pleaded case in concluding that the appellant had committed the further offences – where the appellant submitted that the primary judge incorrectly assumed that tax deductibility turned on whether the documentation had been signed before or after the payment of interest – where the appellant submitted that the primary judge’s ultimate conclusion depended upon the use of promissory notes in the schemes rather than cash – where the appellant submitted that the primary judge erred in assessing the benefits derived by the appellant from the offences – whether the scheme payments were tax deductible – whether tax deductibility was a prerequisite for an application for a pecuniary penalty order – whether the primary judge erred in finding that the appellant had committed the further offences – whether the primary judge erred in ordering that the appellant pay the respondent the penalty amount – whether the primary judge erred in calculating the benefits derived by the appellant.