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39 1997

TAXES CONSOLIDATION ACT, 1997

CHAPTER 4

Revenue offences

Revenue offences.

[FA83 s94; FA86 s40(2); FA89 s18 and Sch1 par3(2); FA92 s243; FA96 s132(1) and (2) and Sch5 PtI par13(2) and PtII]

1078. —(1) In this Part—

the Acts” means—

(a) the Customs Acts,

(b) the statutes relating to the duties of excise and to the management of those duties,

(c) the Tax Acts,

(d) the Capital Gains Tax Acts,

(e) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,

(f) the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act,

(g) the statutes relating to stamp duty and to the management of that duty, and

(h) Part VI of the Finance Act, 1983,

and any instruments made thereunder and any instruments made under any other enactment and relating to tax;

authorised officer” means an officer of the Revenue Commissioners authorised by them in writing to exercise any of the powers conferred by the Acts;

tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

(2) A person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person—

(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wilfully furnishes any incorrect information in connection with any tax,

(b) knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or accounts in connection with any tax,

(c) claims or obtains relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which, to the person's knowledge, the person is not entitled,

(d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax,

(e) (i) fails to make any deduction required to be made by the person under section 257 (1),

(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in that behalf in section 258 (3), or

(iii) fails to pay to the Collector-General an amount on account of appropriate tax (within the meaning of Chapter 4 of Part 8 ) within the time specified in that behalf in section 258 (4),

(f) (i) fails to make any deduction required to be made by the person under section 734 (5), or

(ii) fails, having made the deduction, to pay the sum deducted to the Collector-General within the time specified in paragraph 1(3) of Schedule 18 ,

(g) knowingly or wilfully fails to comply with any provision of the Acts requiring—

(i) the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax,

(ii) the furnishing of any other return, certificate, notification, particulars, or any statement or evidence, for the purposes of any tax,

(iii) the keeping or retention of books, records, accounts or other documents for the purposes of any tax, or

(iv) the production of books, records, accounts or other documents, when so requested, for the purposes of any tax,

(h) knowingly or wilfully, and within the time limits specified for their retention, destroys, defaces or conceals from an authorised officer—

(i) any documents, or

(ii) any other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form, which a person is obliged by any provision of the Acts to keep, to issue or to produce for inspection,

(i) fails to remit any income tax payable pursuant to Chapter 4 of Part 42 , and the regulations under that Chapter, or value-added tax within the time specified in that behalf in relation to income tax or value-added tax, as the case may be, by the Acts, or

(j) obstructs or interferes with any officer of the Revenue Commissioners, or any other person, in the exercise or performance of powers or duties under the Acts for the purposes of any tax.

(3) A person convicted of an offence under this section shall be liable—

(a) on summary conviction to a fine of £1,000 which may be mitigated to not less than one fourth part of such fine or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.

(4) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to an offence under this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (3) (a), and the reference in subsection (2) (a) of section 13 of the Criminal Procedure Act, 1967 , to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.

(5) Where an offence under this section is committed by a body corporate and the offence is shown to have been committed with the consent or connivance of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a member of the committee of management or other controlling authority of the body corporate, that person shall also be deemed to be guilty of the offence and may be proceeded against and punished accordingly.

(6) In any proceedings under this section, a return or statement delivered to an inspector or other officer of the Revenue Commissioners under any provision of the Acts and purporting to be signed by any person shall be deemed until the contrary is proved to have been so delivered and to have been signed by that person.

(7) Notwithstanding any other enactment, proceedings in respect of an offence under this section may be instituted within 10 years from the date of the commission of the offence or incurring of the penalty, as the case may be.

(8) Section 1 of the Probation of Offenders Act, 1907, shall not apply in relation to offences under this section.

(9) Sections 987 (4) and 1052 (4), subsections (3) and (7) of section 1053 , and sections 1068 and 1069 and sections 26 (6) and 27 (7) of the Value-Added Tax Act, 1972 , shall, with any necessary modifications, apply for the purposes of this section as they apply for the purposes of those sections, including, in the case of such of those sections as are applied by the Capital Gains Tax Acts, the Corporation Tax Acts, or Part VI of the Finance Act, 1983, the purposes of those sections as so applied.

Duties of relevant person in relation to certain revenue offences.

[FA95 s172]

1079. —(1) In this section—

the Acts” means—

(a) the Customs Acts,

(b) the statutes relating to the duties of excise and to the management of those duties,

(c) the Tax Acts,

(d) the Capital Gains Tax Acts,

(e) the Value-Added Tax Act, 1972, and the enactments amending or extending that Act,

(f) the Capital Acquisitions Tax Act, 1976, and the enactments amending or extending that Act,

(g) the statutes relating to stamp duty and to the management of that duty,

and any instruments made thereunder and any instruments made under any other enactment and relating to tax;

appropriate officer” means any officer nominated by the Revenue Commissioners to be an appropriate officer for the purposes of this section;

company” means any body corporate;

relevant person”, in relation to a company and subject to subsection (2), means a person who—

(a) (i) is an auditor to the company appointed in accordance with section 160 of the Companies Act, 1963 (as amended by the Companies Act, 1990), or

(ii) in the case of an industrial and provident society or a friendly society, is a public auditor to the society for the purposes of the Industrial and Provident Societies Acts, 1893 to 1978, and the Friendly Societies Acts, 1896 to 1977,

or

(b) with a view to reward, assists or advises the company in the preparation or delivery of any information, declaration, return, records, accounts or other document which he or she knows will be or is likely to be used for any purpose of tax;

relevant offence” means an offence committed by a company which consists of the company—

(a) knowingly or wilfully delivering any incorrect return, statement or accounts or knowingly or wilfully furnishing or causing to be furnished any incorrect information in connection with any tax,

(b) knowingly or wilfully claiming or obtaining relief or exemption from, or repayment of, any tax, being a relief, exemption or repayment to which there is no entitlement,

(c) knowingly or wilfully issuing or producing any incorrect invoice, receipt, instrument or other document in connection with any tax, or

(d) knowingly or wilfully failing to comply with any provision of the Acts requiring the furnishing of a return of income, profits or gains, or of sources of income, profits or gains, for the purposes of any tax, but an offence under this paragraph committed by a company shall not be a relevant offence if the company has made a return of income, profits or gains to the Revenue Commissioners in respect of an accounting period falling wholly or partly in the period of 3 years preceding the accounting period in respect of which the offence was committed;

tax” means any tax, duty, levy or charge under the care and management of the Revenue Commissioners.

(2) For the purposes of paragraph (b) of the definition of “relevant person”, a person who but for this subsection would be treated as a relevant person in relation to a company shall not be so treated if the person assists or advises the company solely in the person's capacity as an employee of the company, and a person shall be treated as assisting or advising the company in that capacity where the person's income from assisting or advising the company consists solely of emoluments to which Chapter 4 of Part 42 applies.

(3) If, having regard solely to information obtained in the course of examining the accounts of a company, or in the course of assisting or advising a company in the preparation or delivery of any information, declaration, return, records, accounts or other document for the purposes of tax, as the case may be, a person who is a relevant person in relation to the company becomes aware that the company has committed, or is in the course of committing, one or more relevant offences, the person shall, if the offence or offences are material—

(a) communicate particulars of the offence or offences in writing to the company without undue delay and request the company to—

(i) take such action as is necessary for the purposes of rectifying the matter, or

(ii) notify an appropriate officer of the offence or offences,

not later than 6 months after the time of communication, and

(b) (i) unless it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a), cease to act as the auditor to the company or to assist or advise the company in such preparation or delivery as is specified in paragraph (b) of the definition of “relevant person”, and

(ii) shall not so act, assist or advise before a time which is the earlier of—

(I) 3 years after the time at which the particulars were communicated under paragraph (a), and

(II) the time at which it is established to the person's satisfaction that the necessary action has been taken or notification made, as the case may be, under paragraph (a).

(4) Nothing in paragraph (b) of subsection (3) shall prevent a person from assisting or advising a company in preparing for, or conducting, legal proceedings, either civil or criminal, which are extant or pending at a time which is 6 months after the time of communication under paragraph (a) of that subsection.

(5) Where a person, being in relation to a company a relevant person within the meaning of paragraph (a) of the definition of “relevant person”, ceases under this section to act as auditor to the company, then, the person shall deliver—

(a) a notice in writing to the company stating that he or she is so resigning, and

(b) a copy of the notice to an appropriate officer not later than 14 days after he or she has delivered the notice to the company.

(6) A person shall be guilty of an offence under this section if the person—

(a) fails to comply with subsection (3) or (5), or

(b) knowingly or wilfully makes a communication under subsection (3) which is incorrect.

(7) Where a relevant person is convicted of an offence under this section, the person shall be liable—

(a) on summary conviction, to a fine of £1,000 which may be mitigated to not less than one-fourth part of such fine, or

(b) on conviction on indictment, to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.

(8) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to this section as if, in place of the penalties specified in subsection (3) of that section, there were specified in that subsection the penalties provided for by subsection (7) (a), and the reference in subsection (2) (a) of section 13 of the Criminal Procedure Act, 1967 , to the penalties provided for in subsection (3) of that section shall be construed and apply accordingly.

(9) Notwithstanding any other enactment, proceedings in respect of this section may be instituted within 6 years from the time at which a person is required under subsection (3) to communicate particulars of an offence or offences in writing to a company.

(10) It shall be a good defence in a prosecution for an offence under subsection (6) (a) in relation to a failure to comply with subsection (3) for an accused (being a person who is a relevant person in relation to a company) to show that he or she was in the ordinary scope of professional engagement assisting or advising the company in preparing for legal proceedings and would not have become aware that one or more relevant offences had been committed by the company if he or she had not been so assisting or advising.

(11) Where a person who is a relevant person takes any action required by subsection (3) or (5), no duty to which the person may be subject shall be regarded as having been contravened and no liability or action shall lie against the person in any court for having taken such action.

(12) The Revenue Commissioners may nominate an officer to be an appropriate officer for the purposes of this section, and the name of an officer so nominated and the address to which copies of notices under subsection (3) or (5) shall be delivered shall be published in Iris Oifigiúil.

(13) This section shall apply as respects a relevant offence committed by a company in respect of tax which is—

(a) assessable by reference to accounting periods, for any accounting period beginning after the 30th day of June, 1995,

(b) assessable by reference to years of assessment, for the year 1995-96 and subsequent years of assessment,

(c) payable by reference to a taxable period, for a taxable period beginning after the 30th day of June, 1995,

(d) chargeable on gifts or inheritances taken on or after the 30th day of June, 1995,

(e) chargeable on instruments executed on or after the 30th day of June, 1995, or

(f) payable in any other case, on or after the 30th day of June, 1995.