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Failure to Lodge a Tax Return

Streeton Criminal Lawyers Sydney

Failing to lodge a tax return can result in criminal charges, a criminal record and even a jail sentence. The following is an article written by one of the partners of Streeton Lawyers.

The offence of Failing to Lodge a Tax Return: Section 8C of the Taxation Administration Act 1953 (Cth)

The offence is committed by failing to lodge a tax return with the Australian Taxation Office. Often the charge is brought after the Commissioner of Taxation has directed the person, pursuant to section 162 of the Income Tax Assessment Act 1936 (Cth), to submit a tax return by a particular date and the person fails to do so.

Penalties

  • Maximum penalty for a first offence: A fine of $2,200
  • Maximum penalty if previously convicted of a relevant offence: A fine of $4,400
  • Maximum penalty if previously convicted of 2 or more relevant offences: Imprisonment for 12 months and/or a fine of $5,500.

Local Court

The charge is heard by a magistrate in the Local Court.

Relevant offence

The maximum penalty depends upon whether the person has previously committed what is referred to as a “relevant offence” within 5 years of the current offence. It does not matter whether a conviction was recorded or not. A relevant offence includes:

  • Failing to comply with requirements under a taxation law (including a failure to submit a return);
  • Failing to answer a question or produce a document when attending before the Commissioner of Taxation pursuant to a taxation law;
  • Failure to take an oath or make an affirmation when attending before the Commissioner of Taxation pursuant to a taxation law;
  • Failure to comply with a court order to comply with a requirement pursuant to a taxation law.

The maximum penalties are listed above.

Defence

It is a defence if the person was not able to comply with the requirement.

Sentence

If a person is found guilty, or pleads guilty, the magistrate may consider dismissing the charge without recording a conviction pursuant to section 19B of the Crimes Act 1914 (Cth). In doing so the magistrate will have regard to a number of considerations including the character, record and health of the person, the nature and circumstances of the offence and whether it is inexpedient to inflict any punishment.

If the magistrate does proceed to convict the person and proceed to sentence the magistrate will consider (among other things) the circumstances of the offence, the length of time the tax returns were outstanding, as well as the reason that the direction of the Commissioner of Taxation was not complied with. The magistrate will consider whether the person pleaded guilty or not (in which case he or she is entitled to a discount on sentence), has prior convictions, whether he or she is employed or has any medical issues.

At the conclusion of the sentence the magistrate may make a court order that any outstanding tax returns be lodged with the Australian Taxation Office.

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