Failure to Answer Questions When Attending Before the Commissioner

– section 8D of the Taxation Administration Act 1953
Failure to Answer Questions When Attending Before the CommissionerThis offence occurs during the hearing of a tax law matter. It is when someone refuses to answer questions or to produce a document.
Examples of Failure to Answer Questions When Attending Before the Commissioner
  • Someone is a witness in a taxation law matter and refuses to answer a question.
  • Someone is the accused in a taxation law matter and fails to produce a relevant document.
What are some of the possible defences to a charge of Failure to Answer Questions When Attending Before the Commissioner?

Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

  • The accused did not appear before the Commissioner or another person pursuant to a taxation law;
  • The accused was not required by taxation law to answer a question; produce a book, paper or another document; or either to take an oath or make an affirmation;
  • The accused did not refuse or fail to answer a question; produce a book, paper or another document; or either to take an oath or make an affirmation.

A specific defence to failing to answer a question or produce a book, paper or another document is that the accused is incapable of complying with the request.1 The accused bears the burden of proof to establish that they are incapable of complying with the request.2

Available defences to this charge will depend on the circumstances of your case.

Questions in cases like this
  • Which questions are you obliged to answer?
  • What documents are you obliged to provide?
  • Is there a good reason why you did not answer a question or provide a document?
Maximum penalty and Court that deals with this charge

Courts may impose a fine for as much $4,000 if the person already has a previous record of a relevant offence.

Failure to Answer Questions When Attending Before the Commissioner is a charge typically heard in the Magistrates’ Court.

What is the legal definition of Failure to Answer Questions When Attending Before the Commissioner?
  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:
    1. to answer a question asked of the person; or
    2. to produce a book, paper, record or other document;

    commits 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.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1B).

  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, either to take an oath or make an affirmation commits an offence.

 

Legislation

The section that covers this offence is section 8D of the Taxation Administration Act 1953.

Elements of the offence

For a person to be found guilty of this offence, the prosecution must prove the following elements beyond reasonable doubt:

  1. The accused attended before the Commissioner or another person pursuant to a taxation law; and
  2. The accused refused or failed, when and as required pursuant to a taxation law to do so;
    1. To answer a question asked of the person; or
    2. To produce a book, paper or other document; or
    3. Either to take an oath or make an affirmation.

Element 1: The accused attended before the Commissioner or another person pursuant to taxation law
The prosecution must establish that the accused attended before the Commissioner for Taxation or another person pursuant to taxation law.

Other people pursuant to taxation law could include the Deputy Commissioner of Taxation, a Second Commissioner of Taxation, or any other authority pursuant to taxation law.3

‘Taxation law’ means any legislation or part thereof of which the Commissioner of Taxation has the general administration, any legislative instruments made under such legislation, or the Tax Agent Services Act 2009 or regulations made under that Act.4

Element 2: The accused refused or failed, when and as required pursuant to a taxation law to do so (a) to answer a question asked of the person; (b) to produce a book, paper or other document; or either to take an oath or make an affirmation

“Can they prove that the question asked was pursuant to a taxation law?”

The prosecution will satisfy the second element of the offence if they can prove that the accused, when and as required pursuant to a taxation law to do so, refused or failed:

  1. To answer a question asked of them;
  2. To produce a book, paper, record or other document, or
  3. Either to take an oath or make an affirmation.

Points (a) and (b) are ‘strict liability’ offences. This means that the accused will be guilty of this offence regardless of their mental state of they fail or refuse to answer a question asked of them; or fail or refuse to produce a book, paper, record or other document.5

However, the accused may successfully defend themselves in circumstances where points (a) and (b) are relevant if the accused is incapable of complying with the request.6 The accused bears the burden of proof to establish that they are incapable of complying with the request.7

What can you be sentenced to for this charge?

You will most likely receive a fine for this offence.

Other Important Resources

 



[1] Taxation Administration Act 1953 s 8D(1B)
[2] Taxation Administration Act 1953 s 8D(1B)
[3] Taxation Administration Act 1953 s 2
[4] Income Tax Assessment Act 1997 s 995.1
[5] Taxation Administration Act 1953 s 8D(1A)
[6] Taxation Administration Act 1953 s 8D(1B)
[7] Taxation Administration Act 1953 s 8D(1B)