Section 1078 Revenue offences
|
(1) In this Part―
"the Acts" means―
(a) the Customs Acts,
(b) the statutes relating to the duties of excise and to the management of those duties,
(c) the Tax Acts,
[(ca) Parts 18A and 18C,]1
(d) the Capital Gains Tax Acts,
(e) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,
(f) the [Capital Acquisitions Tax Consolidation Act 2003]2, and the enactments amending or extending that Act,
(g) the statutes relating to stamp duty and to the management of that duty, and
(h) Part VI of the Finance Act, 1983,
[(i) Part 18B,]3
and any instruments made thereunder and any instruments made under any other enactment and relating to tax;
"authorised officer" means an officer of the Revenue Commissioners authorised by them in writing to exercise any of the powers conferred by the Acts;
"tax" means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.
Amendments
1 Para (ca) of definition of "the Acts" substituted by Finance Act 2010 section 150(2)(d) for 2010 and later tax years.
2 Substituted by Capital Acquisitions Tax Consolidation Act 2003 section 119 and Schedule 3.
3 Inserted by Finance (No. 2) Act 2008 section 3(1)(e) from 1 January 2009.
What powers does a Revenue officer have to institute criminal proceedings against me if I have committed a Revenue offence?
(1) A Revenue official (authorised officer) may (see (2)) institute criminal proceedings against you if you have committed a revenue offence under the law relating to income tax, corporation tax, capital gains tax, value added tax, capital acquisitio...
(1A)(a) In this subsection―
"facilitating" means aiding, abetting, assisting, inciting or inducing;
"fraudulent evasion of tax by a person" means the person―
(a) evading or attempting to evade any payment or deduction of tax required under the Acts to be paid by the person or, as the case may be, required under the Acts to be deducted from amounts due to the person, or
(b) claiming or obtaining, or attempting to claim or obtain, relief or exemption from, or payment or repayment of, any tax, being relief, exemption, payment or repayment, to which the person is not entitled under the Acts,
where, for those purposes, the person deceives, omits, conceals or uses any other dishonest means including-
(i) providing false, incomplete or misleading information, or
(ii) failing to furnish information,
to the Revenue Commissioners or to any other person.
(b) For the purposes of this subsection and subsection (5) a person (in this paragraph referred to as the "first-mentioned person") is reckless as to whether or not he or she is concerned in facilitating―
(i) the fraudulent evasion of tax by a person, being another person, or
(ii) the commission of an offence under subsection (2) by a person, being another person,
if the first-mentioned person disregards a substantial risk that he or she is so concerned, and for those purposes "substantial risk" means a risk of such a nature and degree that, having regard to all the circumstances and the extent of the information available to the first-mentioned person, its disregard by that person involves culpability of a high degree.
(c) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person―
(i) is knowingly concerned in the fraudulent evasion of tax by the person or any other person,
(ii) is knowingly concerned in, or is reckless as to whether or not the person is concerned in, facilitating―
(I) the fraudulent evasion of tax, or
(II) the commission of an offence under subsection (2) (other than an offence under paragraph (b) of that subsection),
by any other person, or
(iii) is knowingly concerned in the fraudulent evasion or attempted fraudulent evasion of any prohibition or restriction on importation for the time being in force, or the removal of any goods from the State, in contravention of any provision of the Acts.
Amendments
Subs (1A) inserted by Finance Act 2005 section 142(a).
(1B) A person is guilty of an offence under this section if he or she, with the intention to deceive―
(a) purports to be, or
(b) makes any statement, or otherwise acts in a manner, that would lead another person to believe that he or she is,
an officer of the Revenue Commissioners.
Amendments
Subs (1B) inserted by Finance Act 2007 section 126.
(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person―
(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wilfully furnishes any incorrect information in connection with any tax,
(b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or accounts in connection with any tax,
(c) claims or obtains relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which, to the person's knowledge, the person is not entitled,
(d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax,
[(dd)(i) fails to make any deduction of dividend withholding tax (within the meaning of Chapter 8A of Part 6) required to be made by the person under section 172B(1),
(ii) fails, having made that deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 172K(2),
(iii) fails to make any reduction required to be made by the person under section 172B(2),
(iv) fails, having made that reduction, to pay to the Collector-General the amount referred to in section 172B(2)(d), which amount is treated under that section as if it were a deduction of dividend withholding tax (within the meaning of Chapter 8A of Part 6), within the time specified in that behalf in section 172K(2), or
(v) fails to pay to the Collector-General, within the time specified in that behalf in section 172K(2), an amount referred to in section 172B(3)(a) which is required to be paid by the person to the Collector-General and which is treated under that section as if it were a deduction of dividend withholding tax (within the meaning of Chapter 8A of Part 6),]1
(e)(i) fails to make any deduction required to be made by the person under section 257(1),
(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 258(3), or
(iii) fails to pay to the Collector-General an amount on account of appropriate tax (within the meaning of Chapter 4 of Part 8) within the time specified in that behalf in section 258(4),
[(f) fails to pay to the Collector-General appropriate tax (within the meaning of ]section 739E) within the time specified in that behalf in section 739F,]2
(g) [fails without reasonable excuse]3 to comply with any provision of the Acts requiring―
(i) the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax,
(ii) the furnishing of any other return, certificate, notification, particulars, or any statement or evidence, for the purposes of any tax,
(iii) the keeping or retention of books, records, accounts or other documents for the purposes of any tax, or
(iv) the production of books, records, accounts or other documents, when so requested, for the purposes of any tax,
(h) knowingly or wilfully, and within the time limits specified for their retention, destroys, defaces or conceals from an authorised officer―
(i) any documents, or
(ii) any other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form, which a person is obliged by any provision of the Acts to keep, to issue or to produce for inspection,
[(hh) knowingly or wilfully falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, any books, records or other documents―
(i) which the person has been given the opportunity to deliver, or as the case may be, to make available in accordance with section 900(3), or
(ii) which the person has been required to deliver or, as the case may be, to make available in accordance with a notice served under section 900, 902, 906A or 907, or an order made under section 901, 902A or 908,]4
(i) fails to remit any income tax payable pursuant to Chapter 4 of Part 42, and the regulations under that Chapter, or value-added tax within the time specified in that behalf in relation to income tax or value-added tax, as the case may be, [by the Acts]5,
[(ii)(i) fails to deduct tax required to be deducted by the person under section 531(1), or
(ii) fails, having made that deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 531(3A),
or]6
(j) obstructs or interferes with any officer of the Revenue Commissioners, or any other person, in the exercise or performance of powers or duties under the Acts for the purposes of any tax.
Amendments
1 Subs (2)(dd) inserted by Finance Act 1999 section 27(b) for 1999-2000 and later tax years.
2 Subs (2)(f) substituted by Finance Act 2005 section 142(b)(i).
3 Substituted by Finance Act 2002 section 133(a). The revised wording shifts the burden of proof from the inspector to the taxpayer. The previous wording "knowingly and wilfully" was impossible to prove as the inspector would have no knowledge of a taxpayer's intent.
4 Subs (2)(hh) inserted by Finance Act 1999 section 211(a).
5 Substituted by Finance Act 2005 section 142(b)(ii).
6 Subs (2)(ii) inserted by Finance Act 2005 section 142(b)(iii).
(3) A person convicted of an offence under this section shall be liable―
(a) on summary conviction to a fine of [€5,000]1 which may be mitigated to not less than one fourth part of such fine or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding [€126,790]2 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.
Amendments
1 Substituted by Finance Act 2008 section 138(1)(d) as respects an offence committed on a day after 13 March 2008.
2 Substituted by Finance Act 2001 section 240(2) and Schedule 5 as respects any act or omission which takes place or begins on or after 1 January 2002.
What happens if I am convicted of a Revenue offence?
(3) If you are convicted of a revenue offence, you are liable on summary conviction to a fine of €5,000, and/or, at the discretion of the court, 12 months' imprisonment. Revenue may mitigate the fine to one quarter of the fine imposed by the court....
(3A) Where a person has been convicted of an offence referred to in subparagraph (i), (ii) or (iv) of subsection (2)(g), then, if an application is made, or caused to be made to the court in that regard, the court may make an order requiring the person concerned to comply with any provision of the Acts relating to the requirements specified in the said subparagraph (i), (ii) or (iv), as the case may be.
Amendments
Subsection (3A) inserted by Finance Act 1999 section 211(c).
(3B) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person fails or refuses to comply with an order referred to in subsection (3A) [within a period of 30 days commencing on the day the order is made]1.
Amendments
Subs (3B) inserted by Finance Act 2002 section 133(b).
1 Inserted by Finance (No. 2) Act 2008 section 92(k).
(4) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (3)(a), and the reference in subsection (2)(a) of section 13 of the Criminal Procedure Act, 1967, to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.
What is the maximum fine that may be imposed by the court if I am convicted of an indictable offence?
(4) Under the Criminal Procedure Act 1967 section 14, where you plead guilty in the District court to an indictable offence, the maximum fine that may be imposed by the court is €127, and the maximum prison sentence that may be imposed is 12 months...
(5) Where an offence under this section is committed by a body corporate and the offence is shown [to have been committed with the consent or connivance of or to be attributable to any recklessness (as provided for by subsection(1A)(b)) on the part of]1 any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a member of the committee of management or other controlling authority of the body corporate, that person shall also be deemed to be guilty of the offence and may be proceeded against and punished accordingly.
Amendments
1 Substituted by Finance Act 2005 section 142(c).
What exposure do I have as a company secretary, manager or director for connivance or consent to an offence committed by a body corporate?
(5) Where a revenue offence committed by a body corporate is shown to have been committed with the consent or connivance of, or to be attributable to any recklessness on the part of you as the body's secretary, manager or director, you are also guilt...
(6) In any proceedings under this section, a return or statement delivered to an inspector or other officer of the Revenue Commissioners under any provision of the Acts and purporting to be signed by any person shall be deemed until the contrary is proved to have been so delivered and to have been signed by that person.
When is a return or statement deemed to have been delivered to a Revenue official?
(6) A return or statement delivered to an inspector or Revenue official, and purporting to be signed by a person, is deemed to have been delivered to the official and signed by that signatory, until the contrary is proved.
(7) Notwithstanding any other enactment, proceedings in respect of an offence under this section may be instituted within 10 years from the date of the commission of the offence or incurring of the penalty, as the case may be.
(8) Section 1 of the Probation of Offenders Act, 1907, shall not apply in relation to offences under this section.
Does the judge have discretion to apply the Probation Act in the case of a revenue offence?
(8) No. The Probation of Offenders Act 1907 section 1 allows a court, in dealing with an offence that has been proved, to dismiss the charge or conditionally discharge the offender. This court power does not apply in relation to revenue offences.
(9) Sections 987(4) and 1052(4), subsections (3) and (7) of section 1053, [subsections (9) and (17) of section 1077E,]1 and sections 1068 and 1069[, and [sections 26(3D) and section 27A(16) of the Value-Added Tax Act 1972]2,]3 shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of those sections, including, in the case of such of those sections as are applied by the Capital Gains Tax Acts, the Corporation Tax Acts, or Part VI of the Finance Act, 1983, the purposes of those sections as so applied.
Amendments
1 Substituted by Finance (No. 2) Act 2008 section 98 and Schedule 5 Part 2 para 2(ar)(i) (as amended by Finance Act 2009 section 30(1)(4)(b)) from 24 December 2008.
2 Substituted by Finance Act 2010 section 159 and Schedule 4 para 1(l) from 3 April 2010.
3 Substituted by Finance (No. 2) Act 2008 section 98 and Schedule 5 Part 2 para 2(ar)(ii) (as amended by Finance Act 2009 section 30(1)(4)(b)) from 24 December 2008.
(10) Any summons, notice, order or other document relating to proceedings under this section, or relating to any appeal against a judgement pursuant to such proceedings, may be served by an officer of the Revenue Commissioners.
Amendments
Subs (10) inserted by Finance Act 2010 section 155.
