CHAPTER 23 ISSUES IN TAX INVESTIGATIONS AND TAX AUDITS by Wilson Ong and Tham Siok Peng. (5-Pages Preview)

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1 CHAPTER 23 ISSUES IN TAX INVESTIGATIONS AND TAX AUDITS by Wilson Ong and Tham Siok Peng (5-Pages Preview)

2 CHAPTER 23 ISSUES IN TAX INVESTIGATIONS AND TAX AUDITS The elderly man sat up coughing on his bed. He looked wistfully at a photograph by his bedside. It was the last photograph he took with his parents and his children having a picnic in the backyard in their house. How happy they all looked then, and how he missed those days. He sorely regretted being greedy and preparing false invoices just to claim false expenses and save some taxes over the years. He recalled how he finally realised how serious it was when he was called up for interviews with the Income Tax Investigation Department and the events that followed the summons with the eight charges for tax evasion, the lawyer informing him to be prepared for a jail term, his hasty fl ight out of Singapore. It has been more than ten years now, and his parents have since passed on and were buried in Singapore. Now that the doctors told him that he did not have many more months to live, he really just wanted to pay his last respects at his parents graves and be buried in Singapore himself. He reached for his phone to call his lawyer to see what could be done. 1 by Wilson Ong and Tham Siok Peng A INTRODUCTION [23.1] The Inland Revenue Authority of Singapore ( IRAS ) is a statutory board under the Ministry of Finance. It acts as an agent of the government and provides services in administering, assessing, collecting and enforcing payment of taxes. It also advises the government and represents Singapore internationally on matters relating to taxation. [23.2] Tax is the key source of operating revenue for the Singapore government and income tax is the biggest revenue contributor among all the taxes. Under-declaration of taxable income is a serious offence under the Income Tax Act ( ITA ), 2 punishable by fines and imprisonment. Further, it also deprives the government of resources which could be used for the public good in areas like health, education, infrastructure and security. Therefore, one of the IRAS duties is to seek to ensure that taxpayers declare their income correctly and pay the correct tax. Tax audits and tax investigations are two of the ways through which the IRAS seeks to achieve this aim. [23.3] This chapter describes how the IRAS conducts a tax investigation and a tax audit and discusses what a person can do when faced with such inquiries. 1 The above story illustrates what can happen when one is faced with the consequences of having committed tax evasion. 2 Cap 134, 2008 Rev Ed (hereinafter referred to as ITA ; unless the context requires, all references to section numbers in this chapter are in relation to section numbers in the ITA). 1123

3 Issues in Tax Investigations and Tax Audits B IRAS STRUCTURE Tax Audit Function [23.4] The tax audit function is carried out by the Tax Management Divisions within the IRAS, namely, the: (i) (ii) (iii) Individual Income Tax Division, responsible for income tax audit of all individuals, soleproprietorships and partnerships; Corporate Tax Division, responsible for income tax audit of all companies; and Goods and Services Tax Division, responsible for goods and services tax ( GST ) audit of all GST-registered entities. Tax Investigation Function [23.5] The investigation of tax fraud in all tax types is carried out by the Investigation and Forensic Division within the IRAS. There is also a GST counter-fraud team within the Goods and Services Tax Division that specialises in investigating GST evasion; this team works closely with the Investigation and Forensic Division during the course of its investigation. C IRAS FOCUS ON COMPLIANCE [23.6] The IRAS is generally better known for improving its tax administration over the years by introducing new service initiatives like e-filing of tax returns, pre-filling of individual income tax returns with information from source and no-filing services for certain groups of individual income taxpayers. Less widely known is the IRAS s continuous efforts to improve compliance. Tables 1 and 2 show a continuous upward creep in the number of audits and investigations completed and the amount of tax and penalty recovered as a result. Income Tax FY 2006 FY 2007 FY 2008 FY 2009 Number of $mil Number of $ mil Number of $mil Number of $mil 3, , , , GST 1, , , , Total 5, , , , Table 1: 3 Number of Audit Cases Completed and the Amount of Tax and Penalty Recovered FY Number of Investigation cases Amount from investigation cases ($mil) Extracted from IRAS annual reports for FY 2006/07, 2007/08, 2008/09 and 2009/

4 IRAS Focus on Compliance FY Number of Investigation cases Amount from investigation cases ($mil) Table 2: 4 Number of Investigation Cases Completed (across all tax types) and the Amount of Tax and Penalty Recovered [23.7] It is evident that the number of audit and investigation cases has risen over the years. This in itself is a reflection of the increasing focus on compliance, and a strengthening of the IRAS s capability to detect and tackle income omissions and tax evasions. This focus is accompanied by a continuous simplification of the tax rules and administrative procedures to ease the taxpayers compliance efforts. Taxpayers Profiles [23.8] Past statistics suggest that only a small portion of the taxpaying population is errant, ie intentionally cheating on taxes. The consistent policy of the IRAS towards these errant taxpayers is to detect them and bring the full force of the law against them, including prosecuting them in court. Figure 1. Belief about Taxpayer Compliance 5 [23.9] Of those who fail to comply but are not seeking to cheat on their taxes, two groups deserve special mention the ignorant group and the negligent group. The taxpayers in the ignorant group are those taxpayers that need the IRAS to educate them on their responsibilities as taxpayers so that they can comply with the tax laws. Those in the negligent group are taxpayers who have no intention to cheat on tax, but do not bother to pay attention to their tax affairs; they need to be reminded of their responsibilities as taxpayers, including warnings that not paying attention to their tax affairs is a mistake they must avoid. 4 Extracted from IRAS annual reports for FY 2006/07, 2007/08, 2008/09 and 2009/10. 5 Extracted from IRAS website, < (as at 11 January 2011). 1125

5 Issues in Tax Investigations and Tax Audits Key Strategies [23.10] To encourage and raise the rate of voluntary compliance, the IRAS adopts these four key strategies: (i) (ii) (iii) (iv) a simple tax system; informed taxpayers; an engaged community; credible IRAS. [23.11] To promote voluntary compliance, the IRAS attempts to make the system as simple as possible. For most taxpayers who are employees, this is already the case as most of the data required for tax filing is obtained directly from the source (eg employers, the Ministry of Defence ( Mindef ) and the Ministry of Home Affairs ( MHA ) that administer national service make-up pay, and the Institute of Public Characters ( IPC ) that administers tax deductible donations) and their tax returns are pre-filled. Unless they have other sources of income, the annual filing of tax returns is a relatively straightforward affair for these taxpayers. [23.12] This allows the IRAS to channel resources to the other strategies, ie informed taxpayers, an engaged community and credible IRAS. Well-informed taxpayers are critical; if a taxpayer needs to fulfil his obligations, he needs to know how to do it. Without information, he will not know how to do it. The IRAS routinely conducts outreach programmes to teach different groups of taxpayers how to fulfil their tax obligations, highlight common errors that are committed and the ways to avoid them. The IRAS is always willing to engage trade associations and professional bodies through dialogues and workshops to address their concerns as well as to ensure that their members are aware of their tax obligations and how to fulfil them. Credible IRAS is achieved by building strong audit and investigation functions that are able to detect errors and deal with them professionally and fairly. D WHAT IS AUDIT AND INVESTIGATION? What is Audit? [23.13] Audit is the function of examining a taxpayer s tax declarations, accounts and supporting documents to determine if there is any error in the declarations. If there are errors, the auditor will rectify the errors by revising the tax assessment. The auditor will also educate the taxpayers so that they will not repeat the errors going forward. The auditors may also impose a penalty for the errors in the tax declarations. [23.14] Audit is the treatment adopted by the Comptroller mainly for ignorant and negligent taxpayers. During the audit process, the auditor will educate the taxpayers on the correct way to deal with their tax matters, and this should help them to be compliant in future. For some, the auditor may visit the taxpayers premises to inspect the accounts. This helps to detect other errors that the taxpayers may have missed, and ultimately, the auditor will educate the taxpayers on how to be compliant going forward. 1126

6 What is Audit and Investigation? What is Investigation? [23.15] Investigation is the function of detailed examination of declarations, accounts and supporting documents to determine whether the taxpayer has evaded any taxes. If there is evidence of tax evasion, the investigator will, in addition to recouping the tax evaded, recommend an appropriate penalty for the offences. The penalty could range from composition to prosecution in court. The person who wilfully with intent assists any other person to evade tax may also face a similar penalty ranging from composition to prosecution in court. [23.16] As shown in Table 2 above, the number of investigation cases completed each year is small. Investigation is intrusive and is used only when the Comptroller is satisfied that there is prima facie evidence of tax evasion. The Comptroller will also impose a heavy penalty, including prosecution in court, if tax evasion is established. This is to severely penalise the tax evader and to deter others from doing the same. Trigger Points for Audit and Investigation [23.17] The key difference between a decision to carry out an audit or an investigation is the Comptroller s view on what led to the taxpayer s incorrect declarations. The Comptroller has access to many sources of information, including the informer s allegations. If the Comptroller assesses, based on specific and reliable information available to him, that the taxpayer is likely to have wilfully under-declared his income with the intent to evade tax, then the Comptroller will authorise an investigation. However, if the information available to the Comptroller is more general and only indicates the risk of under-declaration of income without wilful intent to evade tax, then it is more likely that the Comptroller will authorise an audit. Various Sources of Information Available to the Comptroller Informer s allegations [23.18] The IRAS receives allegations from many informers. Such allegations are centrally processed and assessed to determine their validity. The allegations are usually assessed to see if the information provided is specific, coherent and relevant to the alleged tax offences. The given information will also be compared with information available within the IRAS to determine the reliability and trustworthiness of the allegations. Information available within the IRAS includes the taxpayers past income declarations, the assets they own and any other information obtained from external parties. [23.19] Past records have shown that specific information about tax evasion is usually provided by ex-spouses, exemployees, ex-business partners and anyone who is close to the evader and has a good knowledge of the various tax evasion schemes. In addition, there are also civic-minded people who come forward to share information when they feel that another person s acts are wrong. Such information is less specific and could cover information that they have access to in their various capacities such as professionals providing services to clients or suppliers of the alleged evader. 1127

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