Written by
Peter Maley
Director - Criminal Lawyer
Law Information - Commonwealth Offences - Federal
Failure To Answer Questions When Attending Before The Commissioner
Date: 01/09/2009
The Law -
Sections 8D of the Commonwealth Criminal Code states:
(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:
(a) to answer a Question asked of the person; or
(b) to produce a book, paper, record or other document;
is guilty of 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.
(2) 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 is guilty of an offence.
Maximum Penalty - Failure To Answer Questions When Attending Before The Commissioner
The Maximum penalty for the offence of Failure to comply with Requirements Under Taxation Law is a fine not exceeding $2000.00.
Where a person is convicted of an offence against subsection 8C or subsection 8D(1) or (2) (Failure to answer questions when attending before the Commissioner); and the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence ; the penalty that court may impose in respect of the first mentioned offence is a fine not exceeding $4000.00.
What the prosecution must prove - Failure To Answer Questions When Attending Before The Commissioner
In order for the Commissioner or Federal Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.
1. The accused who when attending before the Commissioner or another person pursuant to a taxation law, refused or failed, when and as required pursuant to a taxation law to do so:
(a) to answer a Question asked of the person; or
(b) to produce a book, paper, record or other document;
2. The accused who, when attending before the Commissioner or another person pursuant to a taxation law, refused or failed, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation.
Possible Defences - Failure To Answer Questions When Attending Before The Commissioner
Possible defences to this offence include but are not limited to
1. The accused who when attending before the Commissioner or another person pursuant to a taxation law, did not refuse or fail, when and as required pursuant to a taxation law to do so:
(a) to answer a Question asked of the person; or
(b) to produce a book, paper, record or other document;
2. The accused who, when attending before the Commissioner or another person pursuant to a taxation law, did not refuse or fail, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation.
3. Subsection (1) does not apply to the extent that the accused was not capable of complying with the relevant paragraph.
The Court process - Failure To Answer Questions When Attending Before The Commissioner
This matter is Commonwealth Offence which means it may be dealt with in the Magistrates Court.
Criminal Law Article written by Bill Potts (a Queensland criminal defence lawyer who is experienced in the Commonwealth Charge of Failure to Answer Questions When Attending before the Commissioner matters)