Revenue Offences

Principal Offences

Revenue legislation provides a range of offences which support the obligations of the taxpayers to make returns, pay taxes, maintain records, and co-operate with the Revenue etc.  The principal offences set out in sections 1078 to 1079 of the Taxes Consolidation Act.  There are certain important obligations on the third parties requiring them to report revenue offences.

Section 1078 creates the offence of tax evasion in general terms. The Probation Act is not available. It is an offence to do any of following:

• knowingly and willingly to deliver any incorrect return, statement, account
• knowingly and willingly to furnish incorrect information in connection with any tax;
• knowingly aiding, abetting, assisting, inciting or inducing another person to make or deliver knowingly or wilfully any such return, statement or accounts in connection with tax;
• claiming or obtaining relief or exemption for repayment of tax, to which, to the person’s knowledge, he is not entitled;
• knowingly or wilfully issuing or producing any incorrect invoice, receipt, instrument or other document in connection with any tax.

Tax refers to any tax, including income tax, corporation tax, capital gains tax, value added tax, capital acquisitions tax, stamp duty, customs and excise taxes.

Omission Offences

It is an offence

• to fail to make any required deduction of dividend withholding tax or to fail to make the payment of the same within the relevant time;
• to fail to make any deduction required to be made or to fail to pay the amount of the deduction to the Collector-General;
• to fail without reasonable excuse to comply with any provision of the Act requiring furnishing of returns, information, certificates, particulars etc.;
• to fail to keep any books, retain accounts or documents for the purposes of tax;
• to fail to produce books, records, accounts or documents when requested;
• knowingly or wilfully within the time limits for retention, to destroy, conceal or deface documents or other records in mechanical or electronic form, which are obliged to be retained;
• knowingly and wilfully, to conceal, destroy or dispose of any books and records which a person has been obliged to make available in accordance with the statutory notice;
• to fail to remit income tax, value added tax when due;
• to obstruct or interfere with an officer of the Revenue Commissioners or other person in the exercise or performance of duties under the Taxes Acts.

Sanctions

A person, if convicted of any of the above offences, is liable on summary conviction to a fine up to €6,3480 or up to 12 months imprisonment, or both.  On indictment, a person may be fined up to €126,970 and/or subject to imprisonment for up to 5 years.

A person on conviction may also be ordered to comply with outstanding requirements in relation to records and returns etc.; failure to comply within a 30-day period is, itself, an offence.

Where an offence is committed by a company with the consent or connivance of any director, manager officer or other body, each of those persons is guilty of an offence and may be prosecuted as if they were the principal.

A return or statement sent and purported to be signed by a person is presumed to have been made by that person until the contrary is shown.

There is a 10 year period within which proceedings for an offence under the above provisions may be commenced.

Concealing and Falsifying

It is an offence to falsify, conceal, destroy, or dispose of material which a person knows or suspects would be relevant to the investigation of a Revenue offence. Where a person falsifies, conceals or destroys material or causes the same, in circumstances where it is reasonable to conclude that the person knew or suspected that a tax investigation is or may be undertaken and that the material is relevant to it, then he is presumed to have known or so suspected it,  unless there is a reasonable doubt as the matter.

Contravention of the above offences is subject to a similar level of fine.  The above applies to all Taxes Act.

It is an offence where documents are proposed to have been created by a person; it is presumed until the contrary is shown that the person did so create it.

Where a document is created and addressed it is presumed that it was created by the person who purports to create and sent it and that any statement contained in it is attributed to that person and came to the notice of that second person.

It is presumed that the author of a document who ordinarily uses a computer or electronic system in the course of a business is presumed to be its author.

Where an authorised officer has removed records from any place and gives information that they are to the best of his knowledge, the property of any person is so presumed unless the contrary is shown.  Where he gives evidence that the records relate to any trade or business carried on by that person, it is so presumed until the contrary is shown.

A certificate signed by an inspector or officer of the Revenue certifying a return or declaration in his possession concludes that to the best of his knowledge, the goods delivered to an officer of the Revenue is so presumed until the contrary is shown. Written documents include electronic documents.

Trial by Indictment

In the case of a trial by indictment, the judge may supply the documents to the jury to assist him in understanding the case.  This may include documents submitted in evidence and transcripts but also affidavits of experts summarising the transactions undertaken.  The expert must be summoned by the prosecution and may be required to give evidence.

In a trial, the Judge may order that copies of the following be given to the jury.  Documents admitted in evidence, transcript of the opening speeches of counsel, charts, diagrams, graphics, summaries of evidence agreed, transcript of closing speeches, transcript of the judge’s charge, other documents which would be of assistance to the jury in its deliberations including an affidavit by an accountant or other suitably qualified person, summarising in a form which is likely to be comprehended by the jury, any transactions by the accused or other persons which are relevant to the offence.

Where a document is to be given to the jury as above, the prosecutor is to give a copy to the accused, who may make representations in relation to it.  These are to be taken into account in the Judges’ determination.

Where an expert by an accountant or other qualified person summarising material to the jury as above is to be summoned by the prosecution to attend a trial or may be required to give evidence in relation to any area within his expertise.

Duty to Report

Auditors and tax advisors who become aware of tax evasion in the course of their work or noncompliance must report this to the company and require that the matter be reported to the Revenue.  If at the end of six months, it is not satisfied, shown to the satisfaction of the auditor or advisor that the matter has been rectified or reported, he must cease to act as auditor or cease to assist the company in tax matters for a three-year period at least until the auditor is satisfied or until the auditor is satisfied the matter has been rectified or reported.

The most serious tax evasion offences are reportable offences. The offences concerned refer to most knowingly or wilfully undertaking any of the major tax offences referred to above.  A person who advises the company only in their capacity as an employee is not subject to the obligation.

If a person examining the accounts or advising the company in relation to any information return declaration for tax etc., one of the above categories of adviser becomes aware the company has committed or is in the course of committing one of the above relevant offences, he must, if the differences are material communicate particulars to the company without due delay and request the company to take action to rectify the matter or notify an officer of the offences within six months.  Unless it is satisfied to the person’s satisfaction, the necessary action has been taken, and he will seek to act as an auditor or tax advisor.

The above obligations do not prevent a person from assisting the company in relation to connecting legal proceedings, either civil or criminal, which are outstanding or pending at a time which is six months after the time of communication above.

A person obliged to resign must give notice of resignation and also give notice to the appropriate officer.  The appropriate officer refers to a person nominated by the Revenue Commissioners for the purpose of making such disclosures, a person who is obliged to so commits an offence or makes a false return or statement is subject to a summary conviction to a fine up to €1265 or on indictment a fine up to €6345 or up to three years imprisonment.  The time limit for offences is six years.

It is a defence to show the person who is in the ordinary scope of professional engagement assisting or advising the company in preparing for the legal proceedings and would not have been aware of one or more of the relevant offences had been committed if he had not been so advising or assisting.