Failure to Answer Questions When Attending Before the Commissioner

Failure to Answer Questions When Attending Before the Commissioner is found in section 8D of the Taxation Administration Act 1953 in Victoria. It is committed by a person who refused to answer questions or to produce a document during the hearing of a tax law matter.

Have you been accused of Failure to Answer Questions When Attending Before the Commissioner?

Interview
If the ATO contacts you asking you to come in for an interview regarding an allegation of Failure to Answer Questions When Attending Before the Commissioner, it is important to be aware that they will most likely have gathered recordings that they will say is evidence to support the allegation against you. The interview is not the first stage in the investigation process and the investigator will have already gathered material they won’t tell you about.

Our firm of lawyers are experienced in attending interviews and can provide you with detailed instructions on how to conduct yourself in the interview so as not to harm your position later on.

Pleading Not Guilty
You may decide to plead not guilty to a charge of Failure to Answer Questions When Attending Before the Commissioner because you factually disagree with the allegation. Pleading not guilty requires ground work in reviewing the evidence, taking instructions, considering the strengths and weaknesses of the case and formulating a defence.

We have experienced lawyers who have dedicated their careers to representing people on pleas of not guilty with great success.

Pleading Guilty
The aim of the plea hearing is to minimize the penalty you receive for Failure to Answer Questions When Attending Before the Commissioner. This is achieved through early preparation and careful thought about what submissions to make. The Court will want to hear about the circumstances that lead to the offending, your personal circumstances both past and present and any other factors that might reduce the penalty being considered.

Which court will the case be heard in?
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.
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.
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.1

‘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.2

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.3

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.4 The accused bears the burden of proof to establish that they are incapable of complying with the request.5

Defences
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.6 The accused bears the burden of proof to establish that they are incapable of complying with the request.7

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 for section 8D of the Taxation Administration Act 1953
Courts may impose a fine for as much $4,000 if the person already has a previous record of a relevant offence for Failure to Answer Questions When Attending Before the Commissioner (s8D of the Taxation Administration Act 1953).

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