Revenue may make monetary settlements pursuant to an audit. The basis of settlement depends on the tax liability, interest and penalties. Mitigating circumstances may apply in accordance with criteria set out in other sections.
The auditor may invite the taxpayer to make an offer on payment of liabilities which the audit finds to have been undercharged. Settlement offers are subject to approval at senior level in Revenue. The auditor makes a report, with his recommendation for acceptance or rejection.
After interviews and discussions have concluded between the auditor and the taxpayer or his agent, there will be a final meeting at which the audit findings are set out. If a monetary settlement is proposed, the settlement offer must be made in writing. The taxpayer is obliged to set out details of the rectification of any non-compliant matters identified in the audit.
If the offer is accepted, a letter is issued accordingly. If agreement is not reached, a letter will be set out rejecting it and summarising the adjustments and taxes due, on foot of the matters concerned. The taxpayer is asked to agree the figures or explain why he does not do so. If the matter is not agreed, Revenue will issue appropriate assessments and / or amend assessments in respect of the relevant taxes.
If the matter is not appealed, the tax liability becomes due and owing. It may be made the subject of enforcement. If the tax liability is agreed, but penalties have not been agreed, a notice of opinion is issued in respect of penalties. Interest may arise where there has been an under-declaration and under-charge to tax. Interest is not mitigated. Interest is charged on the underpayment from the date on which the tax fell due, to the date for payment.
Interest arises at a set rate per day fixed by law. The rates are higher for so-called fiduciary taxes, which are collected on behalf of third by way of deduction in payment of the third party liability.
Where tax has not been properly declared, a surcharge will arise in accordance with the Taxes Act. A surcharge applies in the case of an incorrect return, which has been fraudulently or negligently made. There is deemed to be late filing. The surcharge is in additional to interest and penalties. The surcharge is 5% if the return is up to two months late and 10% thereafter. This is subject in each case, to statutory maximum amounts.
Civil penalties arise in relation to a range of negligent and fraudulent returns. These include non-compliance, such as undisclosed income, sales, understated assets and valuations, overstated liabilities, failure to comply with basic VAT and PAYE obligations, improper claims, failure to disclose material facts and circumstances. See the other sections in relation to the civil penalties which Revenue may impose.
Penalties are in addition to the tax concerned, interest and surcharge. Where penalties are not agreed by the taxpayer or settled, then the matter may proceed to court. The court’s jurisdiction to apply penalties is subject to the general jurisdiction for civil claims in the relevant court.
Where the penalty is to be pursued and is not agreed, a notice of opinion is given to the taxpayer. The notice of opinion gives details of the penalty, the circumstances in which it arises, amounts and other details that the auditor considers. The auditor may amend an opinion and give notice to the taxpayer. Account will be taken of whether a qualifying disclosure and/or co-operation has been made/forthcoming.
If there is no agreement within 30 days, the auditor may make an application to court to determine whether there has been a contravention giving rise to the penalty. The court determines the penalty on the basis of evidence before it. The court may also make an order for the recovery of the penalty without prejudice to any other method of recovery. It may be enforced in the same way as court orders generally.
There is no time limit for imposition of penalties, other than in cases of deceased taxpayers. Legal proceedings for penalties cannot be taken against the estate for pre-death liabilities, unless the penalties were agreed or determined by a court before death.
The level of civil penalties is generally geared with reference to whether the actions are deliberate or careless. Deliberate actions will generally be intentional. They may be failures to keep records and accounts, failures to make returns or omissions, providing false statements and wrongly claiming refunds.
Careless action, implies lack of care in making the relevant returns, claims etc. Careless is equivalent to negligence or the failure to take reasonable care. Where a taxpayer of ordinary skill and knowledge, properly advised, would have foreseen the reasonable possibility or likelihood that there is an underpayment in the circumstances, the behaviour may be deemed careless.
The consequences are relevant to the amount of penalty. “Significant consequences” are not defined, but are generally understood to refer to underpayments of more than 15% of the relevant tax. The level of tax related penalty is graded with reference to whether there is deliberate behaviour, careless behaviour with significant consequences or careless behaviour without significant consequences. The co-operation that follows is also relevant.
The penalties regime was reformed in December 2008. Pre-2009 failures of compliance were subject to graduated scales, depending on whether there was deliberate default, gross carelessness or insufficient care. The level of penalty depended on whether there was a qualifying, prompted or unprompted disclosure.
Since 2008, the graduated scale of penalties depend on whether there is a prompted qualifying disclosure, an unprompted qualifying disclosure with cooperation. Revenue may mitigate penalties to an appropriate level. A settlement will typically involve a mitigation of penalties.
The graduated penalty is also dependent on whether there is previous or subsequent qualifying disclosure. In the case of tax defaults after 24th December 2008, a 100% penalty applies to a third and subsequent qualifying disclosures, with deliberate behaviour.
A second qualifying disclosure is subject to a 75% penalty. A first qualifying disclosure is subject to 50% penalty level, in the case of deliberate behaviour. Where there is an unprompted qualifying disclosure with cooperation, the above figures are mitigated respectively to a 100%, 55% and 10%.
In the case of careless behaviour with a significant consequences, a 40% penalty applies to third and subsequent disclosure, 30% to second qualifying disclosure and 20% to the first qualifying disclosure. Where the disclosure is unprompted and is followed with cooperation, the percentage mitigation for third qualifying disclosure was 40%, 20% for a second disclosure and 5% for first disclosure.
In the case of all qualifying disclosures, careless behaviour without significant consequences 10%, with qualifying disclosure and 3% for unprompted qualifying disclosure.
Where there is no qualifying disclosure and no cooperation, 100% penalty applies to deliberate behaviour, 40% for careless behaviour with significant consequences and 20% for careless behaviour without significant consequences.
Where there is cooperation only, 75% penalty applies to deliberate behaviour, 30% for careless behaviour with significant consequences and 15% in respect of careless behaviour without significant consequences.
Revenue may issue a phased payment arrangement to a taxpayer who has limited access to funds, but has assets or employment that may generate an income. Account is taken of the accounts, cash flows, bank statements, debtor and creditor profile. Where instalment arrangements are entered, the taxpayer must comply, with the terms of the settlement’s obligations. Current taxes must be kept up-to-date.
If a taxpayer claims inability to pay, evidence is required, Appropriate documentary or other sufficient must be produced. A statement of affairs, accounts, list of assets, details of income and expenditure, outgoings etc. are required. Revenue may reserve the right to prosecute where full payment is not made.
Revenue undertake a quality assurance program, in order to ensure quality and standards in respect of audits. The taxpayer may request a review or may undertake a statutory appeal. A review may be requested in relation to the conduct of the audit. It may include proposals for adjustments, calculations of liability, reliefs and penalties. It may consider whether the penalties proposed to be charged in the settlement is consistent with Revenue criteria regarding penalties.
A review may be requested within 30 days of the issue of notice of opinion. It must be made in writing. Where it is not reviewed locally, a review, either by a local officer or jointly, with an external reviewer, may be undertaken. The review considers whether the auditor has adequately taken into account of the taxpayers’ arguments and claims and whether the conclusions drawn are reasonable. The review is separate to the statutory right to appeal to the Appeal Commissioners.
The taxpayer may appeal against the auditor’s findings and assessment. Statutory interest is charged when the tax is determined and may not be appealed. Tax geared penalties will be quantified when tax is determined. A taxpayer may appeal following a review provided it is lodged within the statutory time limit.
Revenue is obliged to publish a statutory list, four times a year, of names and details and occupations of taxpayers who have been fined, subject to other penalties or where Revenue has agreed to refrain from initiating proceedings and have accepted a sum in settlement for payment of tax, interest and penalties.
Revenue must publish the list of settlements within three months of the end of each quarter in the official State Journal. Revenue is given a discretion to publicise or reproduce the list in such a manners as it sees fit. It has discretion to specify in the list, such particulars of the settlement as it thinks fit.
When a qualifying disclosure has been accepted, details of the settlement are not published in list of defaulting taxpayers. A qualifying disclosure as defined, is required after 2008 to avoid publication.
There are certain exclusions on publication.
- where a qualifying disclosure is accepted:
- Under the Tax Amnesty (1993)
- where the penalty does not exceed 15% of the tax due
- where the specified sum does not exceed €30,000 in total.
Particulars of the penalty, interest and tax are published. Unconnected overpayments are not deducted. The amount to be published excludes tax included in the settlement, in relation to which the penalty in relation to the tax does not exceed 15%.
See the separate sections n relation to Revenue prosecutions. Revenue run a prosecution program and may transfer cases from audit to prosecution in appropriate circumstances. They may investigate with a view to prosecution having regard to an number of actors including
- whether there is strong admissible evidence available, such as to reach the criminal standard;
- the length of times since the offence occurred;
- the prospective length and expense of a trial;
- the degree of culpability, responsibility and experience of the person concerned;
- the need for deterrence in particular and in general;
- whether the alleged offenders made a full disclosure and co-operated in reaching a settlement.
Finance Act 2016 amended the provisions in relation to qualify disclosures. A disclosure is not deemed to qualify disclosure for the purpose of mitigation of penalties where it relates to offshore matters or the disclosure is not made, but the person has a liability resulting from a offshore tax matter that were known or became known to Revenue at any time.
The disclosure may still qualify in the in the second case (Revenue being aware) if the penalty is less than 15 percent of the tax due and the behaviour was careless but not deliberate.
Offshore matters are incomes, gains, assets and accounts arising or situate outside the State. There is de minimis provision which is intended to apply in respect of liability un to €6,000 euro.
The provisions on publication of tax defaulters were amended by Finance Act 2016.
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