Tax evasion is a serious criminal offence in Australia, with legal consequences that can significantly impact individuals and businesses. In Australia, a country widely recognised for its robust economy and strong legal methods, the issue of tax evasion demands attention.
In this comprehensive guide, we will dive into the world of tax evasion, the penalties associated with it and the steps you can take to ensure compliance with the Australian tax laws.
What is Tax Fraud/Tax Evasion?
Tax evasion is the practice that illegally reduces or eliminates tax liability. It can involve bribery by falsely claiming or concealing material information or by conducting fraudulent transactions. Some corporations lie about how they pay taxes and how they manipulate tax laws to obtain money.
Keep in mind that tax evasion is not to be confused with tax avoidance. This distinction is made because avoidance does not always involve active or passive fault by the taxpayer. So, let’s understand what tax avoidance means.
What is Tax Avoidance in Australia?
Tax avoidance refers to ways in which individuals or companies avoid paying tax while adhering to the law. Taking action does not necessarily mean compliance with the law. Tax avoidance can be characterised in many ways by strategies that take advantage of tax incentive deductions or other creative strategies.
How Is Tax Evasion Generally Committed?
The following are some of the most common forms of tax evasion:
- Individuals purposely failing to declare a part or all of their personal or business income.
- A person dishonestly over-stating their business or personal expenses.
- In order to avoid leaving an audit trail, individuals or businesses receiving cash payments or paying their employees or other businesses in cash.
Besides these, offshoring tax havens, along with money laundering, has become a common form of tax evasion nowadays.
Australia’s Tax Laws
Before we dive into how the ATO investigates tax evasion, let’s have a quick look at the Australian tax laws.
Australia’s tax system is governed by a set of laws and regulations designed to fund government activities and public services. The Australian Taxation Office (ATO) is the key authority responsible for administering tax laws and ensuring compliance.
The primary types of taxes in Australia include income tax, goods and services tax (GST), and various other indirect taxes.
Income tax
Individuals and businesses in Australia are subject to income tax. The rates vary based on income levels, with progressive tax brackets for individuals. Businesses are generally taxed on their profits.
Goods and Services Tax (GST)
GST is a consumption tax that applies to most goods and services sold in Australia. It is currently set at 10%, and businesses are required to collect and remit GST on applicable transactions.
Other Taxes
Additional taxes may include the fringe benefits tax, capital gains tax, and various state-based taxes. The complex tax system aims to ensure fairness and equity across different income levels and economic activities.
The Common Penalties for Tax Evasion in Australia
In Australia, tax law is clear about what constitutes criminal acts related to taxation. Offences such as obtaining a financial advantage, tax fraud, conspiracy to defraud, and tax evasion are outlined in the Criminal Code Act 1995 (Cth).
Knowing which crime falls under which section of the Act and the associated penalties is crucial for individuals. Let’s break down the common taxation offences and their implications.
Taxation Offenses Explained
Obtaining Property by Deception (Section 134.1(1)): This offence occurs if someone uses deception to dishonestly obtain property belonging to a Commonwealth entity, intending to permanently deprive the Commonwealth of that property.
“Property” here generally refers to owed taxes. If found guilty, the maximum sentence is ten years in prison.
Obtaining Financial Advantage by Deception (Section 134.2(1)): This offence is alleged if deception is used to dishonestly gain a financial advantage from a Commonwealth entity. If proven, the maximum sentence is ten years in prison. Examples include falsely claiming benefits not entitled to.
Obtaining Financial Advantage (Section 135.2(1)): An alternative to the more serious offence under Section 134.2(1), this offence may be alleged if someone obtains a financial advantage from a Commonwealth entity. If found guilty, the maximum sentence is twelve months in prison.
Conspiracy to Defraud (Section 135.4(3)): This offence is brought if someone conspires with another person to dishonestly cause a loss to a Commonwealth entity. If found guilty, the maximum sentence is ten years in prison. Knowledge of the entity defrauded is not required, and joint liability may be shared.
Investigating Tax Evasion by the ATO
One thing that you must be aware of when it comes to the Australian Taxation Office is that it takes tax fraud and tax evasion investigations seriously.
In the event of a tax discrepancy, the ATO engages in a thorough investigation to discern whether any fraudulent activities or tax evasion have taken place or if the situation is simply a result of an innocent error.
During the course of their investigation, the ATO examines various aspects to check if you:
Knowingly Provided False or Misleading Information: It included making false or misleading statements with the intent to manipulate tax outcomes.
Withheld Information: If you intentionally left out crucial details to influence your tax situation, it raises concern.
Failing to Maintain Adequate Records: Keeping proper financial records is essential. The ATO scrutinises whether you have neglected this responsibility, especially in the context of a tax audit.
Intentionally Omitted Income: If income has been omitted from your tax return without a plausible explanation, it raises suspicions.
For the ATO to declare an act as tax fraud or tax evasion, a fair and well-founded judgment is essential. According to their Practice Statement, this determination is reserved for executives or senior-level officers, aligning with ATO policies and practices.
The ATO doesn’t work in isolation during investigations. They seek specialised assistance, such as:
Consulting Technical Advisory Divisions: Bringing in experts to ensure a comprehensive understanding of the technical aspects of the case.
Formal Assistance from Tax Counsel Network: In cases where the level of risk is significant, the ATO may seek formal help from the Tax Counsel Network.
Advice from National Fraud or Evasion Advisory Panel: Seeking input from a specialised advisory panel focused on fraud and evasion.
Reporting Suspected Fraud to the Australian Institute of Criminology: If instances of suspected fraud arise, the ATO ensures that it is reported to the appropriate authorities.
Referring Cases to Specialist Divisions: Cases involving “aggressive tax planning,” defined as transactions with little economic substance created primarily for undue tax benefits, may be directed to specialised divisions.
Understanding the nuances of the ATO’s investigative process is crucial in navigating the complexities of taxation, emphasising the importance of compliance and transparency to avoid potential legal consequences.
We understand that navigating tax matters can be a bit difficult sometimes, which may increase the chances of making mistakes in your tax return. So, Clear Tax Accountants is here to help you ensure that you make no errors and stay away from such troubles.
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