Tax Evasion & Fraud

Tax fraud is characterised as the exploitation of the Australian tax system for an individual’s own financial benefit. Common tax crimes include failing to report income, making false claims or concealing assets in offshore accounts in order to obtain tax refunds and benefits that an individual is not entitled to. Furthermore, the Australian Taxation Office identifies that tax fraud is often closely associated with other fraudulent crimes such as identity crime or money laundering.

There is no specific offence related to the crime of tax evasion, however the Criminal Code Act 1995 outlines other more broad crimes that are used to penalise tax evasion charges. These charges are obtaining a financial advantage by deception and conspiracy to defraud. In fact, obtaining a financial advantage by deception can be found under division 134.2 of the Criminal Code 1995 states that:

  1. A person commits an offence if:
    1. The person, by a deception, dishonestly obtains a financial advantage from another person; and
    2. The other person is a Commonwealth entity.

Furthermore, the conspiracy to defraud is found under section 135.4 of the Crime Code Act which details various fraudulent activities that constitute the crime, and are outlined below:

  • Obtaining a gain
  1. A person commits an offence if:
    1. The person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and
    2. The third person is a commonwealth entity.
  2. In a prosecution for an offence against subsection 1, it is not necessary to prove that the defendant knew that the third person was a commonwealth entity.
  • Causing a loss
  1. A person commits an offence if:
    1. The person conspires with another person with the intention of dishonestly causing a loss to a third person; and
    2. The third person is a Commonwealth entity.
  2. In a prosecution for an offence against subsection 3, it is not necessary to prove that the defendant knew that third person was a Commonwealth entity.
  3. A person commits an offence if:
    1. The person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to the third person; and
    2. The first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
    3. The third person is a Commonwealth entity.
  4. In a prosecution for an offence against subsection 5, it is not necessary to prove that the defendant knew that the third person was not a Commonwealth entity.
  • Influencing a public official
  1. A person commits and offence if:
    1. The person conspires with another person with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and
    2. The public official is a Commonwealth public official; and
    3. The duties are duties as a Commonwealth public official/
  2. In a prosecution for an offence against subsection 7, it is not necessary to prove that the defendant knew:
    1. That the official was a Commonwealth public official; or
    2. That the duties were duties of a Commonwealth public official

However, there are a range of other tax related offences that are less serious in nature. Summary offences under the Tax Administration Act 1953 include failing to lodge returns or keep records, making false or misleading statements and not responding to the Australian Taxation Office’s questions when required, and could also result in punishment before the Court.

The Australian Taxation Office along with the Commonwealth Director of Public Prosecutions (CDPP) takes tax evasion and other tax related crimes very seriously, imposing significant criminal convictions where necessary. In fact, a Serious Financial Crime Taskforce was established to control tax offences. Since its establishment in mid 2015 until June 2018, the taskforce has achieved 7 convictions, raised liabilities of $599.34 million and collected $232.16 million.

Evidently, tax fraud of any kind is perceived as a serious criminal offence nationwide. Should you or someone you know be facing charges for tax-related crimes, do not hesitate to contact Benjamin Leonardo – The Defenders to schedule a FREE and confidential consultation.

PENALTIES

As there are a broad range of tax crimes, the penalties vary accordingly. Generally speaking, penalties for tax evasion are taken more seriously as opposed to tax related summary offences, and therefore may incur significant terms of imprisonment. As per the Criminal Code and Tax Administration Act the maximum the penalties for tax evasion and other tax related crimes are listed below.

  • Obtaining a Financial Advantage by Deception: Imprisonment for 10 years
  • Conspiracy to Defraud
    • Obtaining a Gain: Imprisonment for 10 years
    • Causing a Loss: Imprisonment for 10 years
    • Influencing a Commonwealth Public Official: Imprisonment for 10 years
  • Failing to Comply with Requirements under Taxation Law: A fine of $2,200 for first offence

Like most other offences, the maximum penalty is typically reserved for the most serious crimes. Therefore, the Court has the ability to impose alternative penalties in appropriate situations. The determine whether an alternative punishment is sufficient, the Court will deliberate on a number of factors including personal circumstances, past criminal history, and the circumstances surrounding the offence. Alternative punishments that the Court may decide to implement include home detention where an individual is subject to electronic monitoring and strict supervision, fines, suspended sentences, community service orders or intensive correction orders.

For more information on penalties for tax evasion and other tax related offences that is specific to the charges set out against you, please do not hesitate to contact our criminal defence lawyers to schedule a FREE consultation.

GUILTY

To be found tax fraud and other tax related crimes, the prosecution must prove beyond a reasonable doubt:

  • That you either obtained a financial advantage by deception in relation to taxation laws; or
  • That you conspired to defraud the Australian Taxation Office which either caused a gain, a loss or influenced a Commonwealth public official; or
  • That you failed to meet the requirements of the Australian Taxation Law

If the prosecution is able to successfully substantiate these allegations, it is likely that you will be convicted and face the aforementioned penalties. Therefore, if you tend to agree with the tax offence charges made against you, you have the ability to plead guilty.

Although a guilty plea will result in sentencing, the outcomes can potentially be much more favourable as opposed to being found guilty otherwise. Typically, a guilty plea demonstrates regret for your actions in which the Court may be more inclined to enforce an alternative penalty or reduce on maximum sentence.

Furthermore, Sydney based criminal defence lawyers may also be able to negotiate a deal with the prosecution team, given you enter a guilty plea. Again, this will result in a more positive outcome as opposed to being found guilty by the Court, whereby severe penalties will apply.

At Benjamin Leonardo – The Defenders, we work closely with all the clients we represent and provide honest advice if it is in your best interest to plead guilty or not guilty. If you or someone you know is facing charges relating to tax crime, it is advised to seek legal representation immediately.

Call our criminal lawyers now to schedule a FREE first consultation where we can provide tailored advice pertinent to your specific matter.

NOT GUILTY

If you do not believe the allegations made against you, you have the option to plead not guilty. In this instance, the case will proceed to a trial in which the prosecution will present evidence to the Court in order to prove beyond a reasonable doubt that the offence was committed. If they are successful, you may be facing the penalties mentioned above.

However, as expert criminal defence lawyers, it is our job to negate the allegations made by the prosecution on your behalf. In order to do so, we thoroughly scrutinise the evidence provided by the prosecution and provide contradictory evidence that will dismiss these claims. Our expert criminal defence lawyers will raise an appropriate defence strategy that could entirely dismiss the charges set against you, or provide a partial defence, in which the charges will be downgraded and less significant penalty will be imposed.

With a 90% success rate, our team is dedicated to achieving the best possible solution for all the cases we represent. If you, or someone you know is facing charges of tax evasion or other tax crimes, is best to seek legal representation immediately.

Contact Benjamin Leonardo – The Defenders now for a FREE and confidential consultation.

THE DEFENCE

In order to negate the allegations that you were involved in a tax related offence, our expert criminal defence lawyers may argue the follow criminal defences:

Duress: Arises in situations where unlawful coercion has been used to persuade the accused to the criminal activity and would not usually be something they would do if the threats had not been present.

Necessity: Although sometimes difficult to prove, the defence of necessity can be argued in situations where it is found that the accused was in imminent danger by either human or natural forces. Our criminal defence lawyers will need to establish that activity was only undertaken in order to avoid consequences that were deemed as “irreparable evil”. It must also be proven that the accused was in “imminent peril” and that they had no other alternatives to avoid the impending threat.

WHICH COURT?

Tax related crimes are highly complex and vary in severity. Offences such as failing to comply with requirements under taxation law, as per section 8C of the Taxation Administration Act 1953 is classified as a summary offence. This means that the matter will be heard at the the Local Court. Alternatively, the more serious offences listed under the Criminal Code may be heard at the Local Court, unless an election has been made. If an election has been engaged by either yourself or the prosecution, the matter could be escalated to be finalised in the District Court or Supreme Court.

As some of Sydney’s best criminal defence lawyers with 90% success rate for the cases we have represented, our team has achieved great results in various Courts throughout NSW. Clients can be confident that whether their case is dealt with at a Local, District or Supreme Court that our Sydney criminal lawyers possess the expertise to effectively handle the matter.

If you or someone you know is facing charges relating to tax crime, call our expert team now for a FREE consultation.