Wilfully Destroying Records

Wilfully Destroying Records

In Victoria, Wilfully Destroying Records is found in section 119 of the Taxation Administration Act 1997. It is a criminal offence that is committed by a person or a body corporate that wilfully damaged or destroyed a record required to be kept by a taxation law.

Have you been accused of Wilfully Destroying Records? Our lawyers can assist you navigate through the investigation and court process.

wilfully destroy records
Interview
If you are called in for an interview regarding an allegation of willfully destroying records, it is important to be aware that the authorities already have statements that they intend to use against you as well as documents and records that they will say support their case.

An interview is not an opportunity for you to explain your side of the story. It is likely that the investigating authority has already made a decision to charge you. They will ask you questions, which they already have answers to, hoping that you will make an admission or an error about the facts.

It is not your role to provide the authorities with evidence that they can use to charge you. You should set up a conference with us before you attend an interview to discuss your rights and options.

You may feel more comfortable taking a lawyer with you. Our lawyers can attend an interview with you for willfully destroying records to support you through the process.

Pleading Not Guilty
Our lawyers have expertise in representing people charged with willfully destroying records. It is important that evidence is collected from the earliest opportunity to show that you are not guilty of this charge.

Part of our task is to look for issues with the investigation into your alleged conduct. We take these matters very seriously and conduct our own investigation in order to find things which can help your defence.

Pleading Guilty
We can help you to prepare for your hearing should you choose to plead guilty to willfully destroying records. We can speak to the Prosecution on your behalf about the facts that will be presented to the Court. Proper preparation of a plea of guilty can alter the outcome of your punishment. It is important to obtain important material to get the best possible result in your case. This is something we can assist you with as we have appeared in many pleas of guilty for willfully destroying records.
The charge of Wilfully Destroying Records is dealt with in the Magistrates’ Court.
 
Examples of Wilfully Destroying Records
  • A person deliberately wipes the hard drives of all their business computers in an attempt to destroy company invoices.
  • An officer of a body corporate fails to exercise due diligence and a number of records relevant for taxation purposes are inadvertently destroyed during an office relocation.
  • A person burns all of their taxation documents after receiving notice that they are being audited by the tax office.
What is the legal definition of Wilfully Destroying Records?
The legal definition of the offence Wilfully Destroying Records is ‘A person must not wilfully damage or destroy a record required to be kept by a taxation law’.1

Legislation
The relevant legislation for this offence is section 56 of the Taxation Administration Act 1997 (Vic).

Elements of the offence
There are three separate elements to Wilfully Destroying Records that must all be satisfied for a person to be guilty of the offence. These elements are:

  1. A person damages or destroys a record;
  2. They do so wilfully; and
  3. The record is required to be kept by a taxation law.
Element 1: Damage or destroy a record
The first element of this offence requires a person to damage or destroy a record.

The record need not be completely destroyed. Mere damage to the record is enough to satisfy this element of the offence.
“Can they prove you destroyed the record?”
Element 2: The damage or destruction was wilful
The second element of this offence requires the damage or destruction of a record to be wilful. This means that a person must intend that their actions would result in the damage or destruction of a record.

An exception to this is if the person is an officer of a body corporate. If the person is an officer of a body corporate, they will also satisfy the second element if they fail to exercise due diligence to prevent the damage or destruction of a record.2 An officer of a body corporate has a positive obligation to exercise due diligence to ensure that a record is not damaged or destroyed to avoid satisfying the second element of the offence.

Element 3: The record is required to be kept by a taxation law
The final element of this offence requires the record that was damaged or destroyed was required to be kept by a taxation law.

A record is required to be kept by a taxation law if the record is necessary to enable a person’s tax liability under a taxation law to be properly assessed.3 Additional records may also be required to be kept under taxation law if the Commissioner directs a person to keep additional records specified in written notice.4

A record is not required to be kept under taxation law five years after the later of either (a) the date it was made or obtained; or (b) the date of completion of the transaction or act to which it relates.5


[1] Taxation Administration Act 1997 (Vic) s 56
[2] Taxation Administration Act 1997 (Vic) s 130B
[3] Taxation Administration Act 1997 (Vic) s 50
[4] Taxation Administration Act 1997 (Vic) s 51
[5] Taxation Administration Act 1997 (Vic) s 55

 
  • The damage or destruction of records was not deliberate (lack of intent).
  • The records were not relevant for taxation purposes.
  • The accused was not the person who destroyed or damaged the records.
  • The accused was forced to destroy or damage the records by somebody else (duress).
Questions in cases like this
  • Did the person deliberately damage or destroy records?
  • Were the records relevant for taxation purposes?
  • Was the person an officer of a body corporate? If so, did they exercise due diligence to prevent the commission of the damage or destruction of records?

The maximum penalty for Wilfully Destroying Records (s56 of the Taxation Administration Act 1997 (Vic)) for a body corporate is 500 penalty units. As at 1 July 2018, the value of a penalty unit is $161.19.6 As such, the maximum penalty for Wilfully Destroying Records for a body corporate is a $80,595 fine.

The maximum penalty for Wilfully Destroying Records for an individual is 100 penalty units, or a $16,119 fine.

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.7



[6] https://www.legalaid.vic.gov.au/find-legal-answers/fines-and-infringements/penalty-units
[7] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/