1078 Revenue offences

Summary

This section criminalises (i.e. makes an offence) tax/duty evasion in general and specifically various actions or failures in the context of obligations imposed by all the statutes and instruments dealing with taxes and duties under the care and management of the Revenue Commissioners. The section also provides for the maximum liability of a person convicted of such an offence – the actual liability is a matter for the Court. The Probation Act does not apply in respect of these offences.

Details

Definitions

(1) “the Acts” are defined in a list of statutes and instruments which cover the taxes and duties under the care and management of the Revenue Commissioners. The offences detailed in the section apply in relation to matters required to be done by the Acts or to actions undertaken in relation to tax. The Acts concerned are —

• the Customs Acts,
• the statutes relating to excise duties and the management of those duties,
• the Tax Acts,
• Parts 18A, 18B, 18C and 18D,
• the Capital Gains Tax Acts,
• the Value-Added Tax Consolidation Act 2010 and any amendments or extensions to that Act,
• the Capital Acquisitions Tax Consolidation Act 2003 and any amendments or extensions to that Act,
• the statutes relating to stamp duty and the management of that duty, and
• Part VI of the Finance Act, 1983 (residential property tax), and the Finance (Local Property Tax) Act 2012.

“authorised officer” is an officer of the Revenue Commissioners authorised in writing to exercise any of the powers conferred by the Acts.

“tax” is any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

General Revenue offences

(1A)(c) An offence is created where a person is—

• knowingly concerned in the fraudulent evasion of tax by the person or any other person,
• knowingly concerned in, or is reckless as to whether or not the person is concerned in, facilitating the fraudulent evasion of tax by another person or the commission by another person of an offence under subsection (2), or
• 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.

(1A)(a), (b) Explanations are provided for the concepts of “facilitating”, “fraudulent evasion of tax” and what it means for a person to be “reckless” in the context of facilitating tax evasion.

Specific Revenue offences

A person is guilty of an offence under this section if that person —

• (1B) impersonates an officer of the Revenue Commissioners with the intention to deceive,
• (2)(a) knowingly or wilfully furnishes or delivers any incorrect return, statement, accounts or information in connection with any tax,
• (2)(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,
• (2)(ba) knowingly or wilfully possess or uses an electronic device (a zapper), for the purpose of tax evasion that alters computer records without preserving the original data,
• (2)(bb) provides or makes available an electronic device (a zapper), for the purpose of tax evasion, that alters computer records without preserving the original data,
• (2)(c) deliberately makes false claims for relief, or exemption from, or repayment of any tax covered by the section,
• (2)(d) knowingly or wilfully issues or produces incorrect invoices, receipts, instruments or other documents in connection with any tax,
• (2)(dd) fails in relation to dividend withholding tax (DWT) to —
  • make a deduction of DWT required under section 172B(1),
  • pay the DWT deducted to the Collector-General within the time specified in section 172K(2),
  • make a reduction under section 172B(2) in the amount of additional share capital to be issued in place of a cash distribution,
  • pay (having made such a reduction) the amount referred to in section 172B(2)(d) (which amount is treated as a deduction of DWT) to the Collector-General within the time specified in section 172K(2), or
  • pay an amount referred to in section 172B(3)(a) (amount to be paid in case of non-cash distributions other than scrip dividends, and to be treated as a deduction of DWT) to the Collector-General within the time specified in section 172K(2),
• (2)(e) fails in relation to deposit interest retention tax (DIRT) to —
  • make a deduction of DIRT under section 257(1),
  • pay the DIRT deducted to the Collector-General within the time specified in section 258(3), or
  • pay an amount on account of DIRT to the Collector-General within the time specified in section 258(4),
• (2)(f) fails, as an investment undertaking, to pay to the Collector-General the appropriate tax required to be paid under section 739E within the time specified in section 739F,
• (2)(fa) fails to comply with the requirement in section 960S(4) to provide security in respect of certain fiduciary taxes,
• (2)(g) fails without reasonable excuse to comply with the provisions of the Acts which require —
  • the furnishing of a return of income, profits or gains or the sources of such income, profits or gains for tax purposes,
  • the furnishing of any other return, certificate, notification, particulars, statement or evidence for tax purposes,
  • the keeping and retention of books, records, accounts and other documents for tax purposes,
  • the production of books, records, accounts and other documents when requested to do so for tax purposes,
• (2)(h) knowingly or wilfully destroys, defaces or conceals from an authorised officer, within the time limits specified for their retention, any records or any written or printed material in any form (including mechanically or electronically stored, maintained or preserved, even if the material is not stored in legible form) which a person is obliged under the Acts to keep, issue or produce for inspection,
• (2)(hh) knowingly or wilfully falsifies, conceals, destroys or otherwise disposes of (or causes or permits same to happen) books, records or other documents which the person has been required to deliver or, as the case may be, make available under section 900(3) or under a Revenue notice served under section 900, 902, 906A or 907 or by order of the High Court under section 901, 902A, or 908,
• (2)(i) fails to remit PAYE or VAT within the statutory time limits,
• (2)(ii) fails to deduct, or remit to the Collector-General, relevant contracts tax deducted under Chapter 2 of Part 18,
• (2)(iii) fails to deduct, or remit to the Collector-General, local property tax deducted under Part 10 of the Finance (Local Property Tax) Act 2012,
• (2)(j) obstructs or interferes with an officer of the Revenue Commissioners or any other person in the exercise or performance of powers or duties under the Acts for tax purposes.

Liability of a person convicted of a revenue offence

(3) The following liability applies to a person convicted of any offence under this section —

• on summary conviction of an offence committed on or after 14 March 2008, a fine not exceeding €5,000 (€3,000 for offences committed before that date) – which may be mitigated to not less than one fourth part of such fine – or at the discretion of the court, a term of imprisonment not exceeding 12 months, or both, and
• on conviction on indictment, a fine not exceeding €126,970 or at the discretion of the court, a term of imprisonment not exceeding 5 years, or both.

(3A) Where a person has been convicted of an offence referred to in subsection (2)(g)(i), (ii) or (iv) (failure to make returns, provide certain information or produce records), the court can order compliance with the requirements, non-compliance with which resulted in the conviction.

(3B) Where a person who has been ordered to comply with the requirements of subsection (2)(g)(i), (ii) or (iv) fails or refuses to do so, he/she will be guilty of an offence under this section.

(4) Section 13 of the Criminal Procedure Act, 1967 will apply in relation to an offence under this section. However, where that procedure is followed in the case of an offence under this section, the maximum liability under this section of €5,000 and imprisonment for 12 months will apply, rather than the amount and period set out in section 13 of the Criminal Procedure Act, 1967.

Directors, etc of bodies corporate

(5) Where an offence under this section is committed by a body corporate, any person who was a director, manager, secretary or other officer, or a member of the committee of management or other controlling authority of the body at the time of the offence can in certain circumstances be deemed to be personally guilty of the offence and proceeded against accordingly. This can happen where the offence was committed with the consent or connivance of the person concerned, or where the offence is attributable to any recklessness on the part of the person.

Returns and statements under this section

(6) In proceedings under this section, a return or statement delivered to an inspector or a Revenue official under any provision of the Acts and purporting to be signed by a person is deemed to have been so delivered and to have been signed by that person unless the contrary is proved.

Time limit

(7) Summary proceedings in respect of an offence under this section must be instituted before the expiration of 10 years from the commission of the offence or the incurring of the penalty, as may be appropriate.

Probation Act

(8) Section 1 of the Probation of Offenders Act, 1907 which allows a court, in dealing with a proven offence, to dismiss the charge or conditionally discharge the offender does not apply to an offence under this section.

Application of provisions

(9) The provisions of certain sections of this Act and of the Value-Added Tax Consolidation Act 2010 apply for the purposes of this section as they apply for the purposes of the provisions themselves, 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 (Residential Property Tax) for the purposes of those sections as so applied. These provisions are designed to facilitate the administration of the tax system and are described below:

• Sections 530U, 987(4) and 1052(4) (this includes these provisions as applied for capital gains tax purposes) provide that a certificate signed by an officer of the Revenue Commissioners certifying matters of fact as regards the issue of certain documents and the non-receipt of returns, etc is to be prima facie evidence in proceedings for the recovery of penalties in connection with income tax, corporation tax and capital gains tax matters.
• Section 1053(3) provides that where any incorrect return, statement, declaration or accounts had been made or submitted inadvertently and this later comes to the notice of the person who submitted it, then unless the error is remedied without unreasonable delay, the incorrect item is to be treated as having been negligently made or submitted by the person. This section applies up to the passing of the Finance (No. 2) Act 2008 (24 December 2008).
• Section 1053(7) provides that any accounts submitted on behalf of a person (for example, by an accountant) are deemed to have been submitted by that person unless the person proves that they were submitted without his/her consent or knowledge. This section applies up to the passing of the Finance (No. 2) Act 2008 (24 December 2008).
• Section 1077E(9) provides that where a person submits a return, statement, declaration or accounts, neither deliberately nor carelessly, and it subsequently comes to the persons notice that the submission was incorrect, then the person must remedy the error without unreasonable delay and failing that, the incorrect return, statement, declaration or accounts will be treated as having been deliberately made. This section applies after the passing of the Finance (No. 2) Act 2008 (24 December 2008).
• Section 1077E(17) provides that any accounts submitted on behalf of a person shall be deemed to have been submitted by the person unless that person proves that they were submitted without their consent or knowledge. This section applies after the passing of the Finance (No. 2) Act 2008 (24 December 2008).
• Section 1068 provides that a person is deemed not to have failed to act within required time limits if —
  • within any further extension of such limits granted by the Revenue Commissioners that person does comply with the relevant requirements, or
  • that person had a reasonable excuse for non-compliance in the first instance and fulfilled the requirements without unreasonable delay after the excuse had ceased.
• Section 1069 provides that, for the purposes of penalty proceedings, the fact that an assessment can no longer be varied on appeal is sufficient proof that the income on which the assessment is based actually arose to the taxpayer.
• Section 115(9) of the Value-Added Tax Consolidation Act 2010 provides that certificates signed by officers of the Revenue Commissioners of matters of fact shall be prima facie evidence in proceedings in respect of value-added tax matters.
• Section 116(16) of the Value-Added Tax Consolidation Act 2010 provides that any return, invoice, credit note, debit note, receipt, account, voucher, bank statement, estimate, statement, information book, document, record or declaration submitted on behalf of a person shall be deemed to have been submitted by that person unless the person proves that it was submitted without his/her consent or knowledge.

(10) Any summons, notice, order or other document relating to proceedings or appeals against a judgement under this section may be served by an officer of the Revenue Commissioners.

Relevant Date: Finance Act 2019