908D Order to produce evidential material

Summary

This section provides the Revenue Commissioners with the power to apply to a District Court judge for an order requiring a third party, who it is reasonable to suspect has possession of material which could be used in an investigation of criminal tax offences, to surrender that material to the Revenue Commissioners. This power will, in most situations, obviate the need to use the more intrusive search warrant (section 908C) when seeking information from innocent third parties. A person who is the subject of an order under this section must provide access to records in their possession and allow an authorised Revenue officer to copy them and/or take them away for use as evidence in any criminal proceedings. However, an order does not apply to records subject to legal privilege. The person who is the subject of an order must comply with the order; failure to do so can result in a fine of up to €5,000 and/or a prison term of up to 6 months.

Details

Definitions

(1) In this section —

“the Acts” means the Waiver of Certain Tax, Interest and Penalties Act, 1993, as well as the meaning given to it in section 1078(1);

“authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred on him/her by this section;

“commission”, in relation to an offence, includes an attempt to commit the offence;

“computer” includes any electronic device which is capable of performing logical or arithmetical operations on data in accordance with a set of instructions;

“information in non-legible form” means information which is kept in non-legible form, e.g. on microfilm, magnetic tape, etc.;

“material” means any books, documents, records or other things and also includes a computer;

“offence” means an offence under the Acts;

“record” includes any information in non-legible form which can be reproduced in a permanently legible form.

Application for an order by an authorised officer

(2) If a District Court judge is satisfied, based on the sworn evidence of a Revenue officer authorised for the purposes of this section, that an offence under the Acts is being, has been or is about to be committed and that material relevant to the investigation of the offence is likely to be in the possession or control of a person, then the judge may issue an order requiring the person to produce the material for the authorised Revenue officer to access it or to take it away either immediately or within a period specified in the order.

Execution of an order by an authorised officer

(3) Where the material includes records contained on a computer, the person must produce or give access to the records in a visible and legible form so they can be taken away by the authorised Revenue officer.

(4) An order issued under this section also allows the authorised Revenue officer to make copies of any books, documents or records, etc. The requirements of the order take precedence over any secrecy obligations, with the exception of any material that is subject to legal privilege.

(5) Any material taken away by an authorised Revenue officer under this section can be used as evidence in any criminal proceedings.

(6)(a) Any information obtained or accessed by an authorised Revenue officer in accordance with an order issued under this section can be used as evidence in any criminal proceedings unless it is subject to legal privilege, was supplied by a person who cannot be compelled to give evidence for the prosecution, was compiled for the purposes of civil, criminal, disciplinary or other proceedings or unless the requirements of the provisions mentioned in subsection (6)(b) are not complied with.

(6)(b) References in sections 7, 8 and 9 of the Criminal Evidence Act 1992 to a document or to information contained in a document shall be construed as including references to books, documents and records (and the information in those books, documents and records) mentioned in subsection (6)(a), and the provisions of sections 7, 8 and 9 of the Criminal Evidence Act 1992 shall have effect accordingly with any necessary modifications.

Variation or discharge of an order

(7) A District Court judge may vary or discharge an order on the application of an authorised Revenue officer or any person to whom an order under this section relates.

Penalty

(8) A person who fails or refuses to comply (without reasonable excuse) with an order issued under this section is guilty of an offence and is liable, on summary conviction, to a fine of up to €5,000 for an offence committed on or after 14 March 2008, (€3,000 for offences committed before that date) or a prison term of up to 6 months, or to both the fine and prison term.

Relevant Date: Finance Act 2019