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Failure To Answer Questions When Attending Before The Commissioner

What the law says

Sections 8D of the Commonwealth Criminal Code states:

(1) A person who when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails. When and as required pursuant to a taxation law to do so:

(a) to answer a Question asked of the person; or

(b) to produce a book, paper, record or other document;

is guilty of an offence.

(1A) An offence under subsection (1) is an offence of strict liability.

(1B) Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

(2) A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation is guilty of an offence.

What the police must prove

In order for the Commissioner or Federal Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

1. The accused who when attending before the Commissioner or another person pursuant to a taxation law, refused or failed, when and as required pursuant to a taxation law to do so:

(a) to answer a Question asked of the person; or

(b) to produce a book, paper, record or other document;  

2. The accused who, when attending before the Commissioner or another person pursuant to a taxation law, refused or failed, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation.

Maximum penalty

The Maximum penalty for the offence of Failure to comply with Requirements Under Taxation Law is a fine not exceeding $2000.00.

Where a person is convicted of an offence against subsection 8C or subsection 8D(1) or (2) (Failure to answer questions when attending before the Commissioner); and the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence ; the penalty that court may impose in respect of the first mentioned offence is a fine not exceeding $4000.00.

Which court will hear the matter

This matter is Commonwealth Offence which means it may be dealt with in the Magistrates Court.

Possible defences

Possible defences to this offence include but are not limited to

  1. The accused who when attending before the Commissioner or another person pursuant to a taxation law, did not refuse or fail, when and as required pursuant to a taxation law to do so:
    (a) to answer a Question asked of the person; or
    (b) to produce a book, paper, record or other document;
  2. The accused who, when attending before the Commissioner or another person pursuant to a taxation law, did not refuse or fail, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation.
  3. Subsection (1) does not apply to the extent that the accused was not capable of complying with the relevant paragraph.
 

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