ATO Submission Inquiry into penalties for white collar crime

ATO Submission Inquiry into penalties for white collar crime Senate Economics References Committee 1 April 2016 EXTERNAL UNCLASSIFIED

Table of Contents Introduction... 3 Executive summary... 3 The scope of this submission... 3 White-collar crime in a tax context... 4 The penalty regime applicable to tax crime... 4 (A) Administrative penalties... 4 (B) Civil penalties... 5 (C) Taxation offences... 6 (D) Serious tax crime prosecutions... 7 Observations about the current penalty regime... 9 2

Introduction 1. The Australian Taxation Office (ATO) welcomes the opportunity to contribute to this inquiry by the Senate Economics References Committee (the Committee) into penalties for white-collar crime. This submission focusses on whether the current criminal, civil and administrative penalties that apply to tax crime are working as intended to change behaviour and deter others from engaging in tax crime. Executive summary 2. This submission focusses on the penalty regime as it applies to tax crime. 3. The current penalty regime in Australia which deals with tax crime is broadly consistent with comparable countries including the UK, United States and Canada. This penalty regime provides the ATO with a range of treatment options that can be applied to behaviour according to its level of culpability and seriousness. 4. Overall, the current penalty framework is considered to be fit for purpose in terms of its structure, the variety of penalty options it affords to treat white-collar crime, and the maximum levels of penalties and criminal sanctions. In addition, the ATO has a range of powers which support our ability to collect the financial penalties that we impose. The laws include the ability to garnishee bank accounts and prevent taxpayers with a taxation liability from leaving the country. Generally we believe that these laws are effective in supporting the collection of penalties levied. The scope of this submission 5. The success of Australia s tax and superannuation system depends upon the cooperation of taxpayers. The ATO s primary focus is on making it easier for the vast majority of committed taxpayers to comply with the law. We are designing and implementing a system that fosters willing participation and encourages future compliance. Our research indicates that penalties play a minor role with taxpayers who are willing to comply, whereas education programs, clear guidance and, as required, audit activities, will usually have the desired effect. 6. Penalties can and do play an important role in influencing the small group of taxpayers who participate in tax crime. Penalties for this group are an important form of punishment and signal to the community that tax crime will attract serious consequences. 3

White-collar crime in a tax context 7. Tax crime relates to instances where people intentionally and dishonestly do not meet their tax obligations, generally either through not disclosing income they have earned or by mis-stating their deductions. Behaviours can range from deliberately not disclosing cash receipts from business activities, to the hiding of assets and related income in tax havens as typified by Project Wickenby 8. Tax crime also comprises fraudulent attacks on the tax system, often facilitated by identity theft, such as income tax or GST refund frauds. 9. It is important to distinguish tax crime from tax avoidance. Tax avoidance is a form of tax planning that goes beyond what would be considered as normal family or commercial dealings, but instead is motivated primarily by the tax benefits argued to be legally available through the adopted scheme. Australia has very strong laws to combat tax avoidance, and tax avoidance can also attract significant administrative penalties, but tax avoidance is not a criminal breach of the tax laws and is accordingly beyond the scope of this submission. The penalty regime applicable to tax crime 10. The ATO administers over 80 different types of penalties across the tax and superannuation systems. 11. There are four categories of penalties that can be applied to treat tax crime: administrative penalties, civil penalties, taxation offences and serious tax crime prosecutions. These are explained below. (A) Administrative penalties 12. Administrative penalties are imposed by the tax law, and are usually linked to the tax assessment process. A uniform administrative penalty regime applies to all taxation laws (defined broadly) and is contained in Part 4-25 in Schedule 1 to the Taxation Administration Act 1953 (TAA 1953). 13. The most commonly applied administrative penalty for tax crime that results in an underpayment of tax is the imposition of a 75% penalty for intentional disregard of the tax laws: subsection 284-90(1) in Schedule 1 to the TAA 1953. The test for intentional disregard is subjective the intention of the taxpayer is a critical element. Dishonesty is a requisite feature of behaviour showing an intentional disregard for the operation of the law. Evidence of intention must be found through direct evidence or by inference from all the surrounding circumstances, including the conduct of the entity. The base penalty amount of 75% of the tax shortfall can be uplifted by another 20% (to a total of 4

90% of the tax shortfall) where the taxpayer has engaged in repeat offending or been a hindrance. Note that a 75% penalty is also imposed by the law for failure to lodge a return which can also be consistent with fraud or evasion by omitting to report income. 14. Where administrative tax penalties are applied in relation to tax shortfalls, the value of the penalty is proportionate to the amount of the wrongful gain, i.e. the penalty is a percentage of the amount of the tax shortfall. For example a taxpayer who has intentionally disregarded the law and evaded $100,000 in tax, will be subject to a 75% penalty which totals $75,000. This penalty must be paid in addition to the primary tax evaded ($100,000) and interest charges. 15. Overall penalty statistics are reported in the ATO Annual Report: 1 Table 1: Administrative penalties Penalties 2012-13 2013-14 2014-15 Applicable 1,574 3,999 1,633 Remitted 93 1,163 663 Collected 582 788 498 Note: The majority of administrative penalties applied by the ATO are not directly relevant to tax crime (and therefore not relevant to the scope of this submission). They are rather at the lower end of culpability, primarily in relation to failure by a taxpayer to take reasonable care. A significant portion of these lower level penalties are remitted for a range of reasons including: the taxpayer having a good compliance record, the taxpayer making a voluntary disclosure about their tax affairs, the taxpayer cooperating with the ATO or following an approach consistent with the general administrative practice of the ATO. (B) Civil penalties 16. Civil penalties are imposed by a court upon application of the Commissioner of Taxation. Whilst we have not yet tested these types of penalties in relation to tax crime, the promoter penalty regime penalises those found to be promoting a tax exploitation scheme: Division 290 in Schedule 1 to the TAA 1953 can be applied to a white collar criminal who promotes a fraudulent tax evasion scheme to unwitting investors. Prior to the introduction of the promoter penalties in 2006, there was an imbalance in sanctions, creating risks for taxpayers, while promoters often escaped any liability, outside of a criminal conviction. The use of the promoter penalty regime in preference to a criminal investigation would be influenced by factors such as the availability of evidence to support the higher burden of proof required for a criminal conviction. 1 ATO Annual Report 2014-15 (NAT 0995-10.2015), pp. 41. 5

17. In terms of proportionality, these civil penalties can be extremely effective as a deterrent due to their ability to impact on the promoter s professional career. The Federal Court on application by the Commissioner can order an entity to pay a civil penalty or grant an injunction. The maximum penalty that may be imposed by the court is the greater of 5,000 penalty units (i.e. $900,000) for an individual or 25,000 penalty units for a body corporate (i.e. $4.5M) and twice the consideration received directly or indirectly by the entity or its associates in respect of the scheme. (C) Taxation offences 18. Taxation offences are summary offences prosecuted by the ATO 2 (and the Commonwealth Director of Public Prosecutions for defended matters) and heard and determined by a court following the issue of a complaint and summons/court attendance notice. These offences primarily relate to non compliance with lodgement obligations, making false or misleading claims on ATO forms, keeping false records and failing to respond to questions when required to do so. These offences are contained in Part III of the TAA 1953. Maximum fines for most of these offences for individuals and corporations are 20 penalty units (i.e. $3,600) for a first offence, rising for subsequent offences. Penalties for third offences and failing to comply with court orders can include imprisonment. 19. Summary prosecutions results are published on the ATO website: 3 Table 2: Summary prosecutions / taxation offences Year Cases Convictions Dismissals and Withdrawals Fines 2014-15 1,614 1,540 74 9.59 2013-14 1,773 1,540 233 13.02 2012-13 1,944 1,691 253 7.38 20. In terms of proportionality, whilst the maximum fine awarded by the court pursuant to a summary prosecution can be far less than the actual tax evaded, a convicted person or entity can also be ordered to pay up to double or, for subsequent offences, treble the amount of tax avoided: sections 8HA, 8W of the TAA 1953. 2 Under agreement with the Commonwealth Director of Public Prosecutions 3 ATO, 2015, https://www.ato.gov.au/general/the-fight-against-tax-crime/news-and-results/tax-crime-prosecution-results/ 6

(D) Serious tax crime prosecutions 21. Prosecutions of criminal offences pursuant to the Criminal Code Act 1995 (Criminal Code) are the heaviest sanction available to treat tax crime and are imposed by a court following a criminal investigation conducted by the ATO, Australian Federal Police or Australian Crime Commission. Straightforward cases can be prosecuted by the ATO however most are prosecuted by the Commonwealth Director of Public Prosecutions. The main offences applicable to tax crime are: section 134.1(1) Criminal Code dishonestly obtaining Commonwealth property section 134.2(1) Criminal Code obtain financial advantage by deception section 135.4(3) Criminal Code dishonestly cause a loss to the Commonwealth. 22. The maximum penalty for offences against sections 134.1(1), 134.2(1) and 135.4(3) of the Criminal Code is 10 years imprisonment. 23. Serious tax crime prosecutions results are published on the ATO website. 4 Table three provides information relating to convictions from all matters referred to the Commonwealth Director of Public Prosecutions by the ATO. These convictions have resulted from behaviour ranging from opportunistic fraud to organised criminal attacks. Table 3: Serious tax crime prosecutions Year Cases Convictions Custodial sentences Reparation Orders Court Fines $ 2014-15 37 33 30 9.94 4,600 2013-14 45 34 26 3.36 3,800 2012-13 52 52 38 3.50 26,000 24. In respect of serious white collar crime Project Wickenby, a multi-agency taskforce aimed at protecting Australia s financial and regulatory systems by preventing people from promoting or participating in the abusive use of secrecy jurisdictions achieved significant results. 5 These included 46 serious tax crime convictions up until 30 June 2015 (some cases are ongoing), 6 69 prosecutions for taxation offences, $2.297 billion in liabilities raised (of which administrative penalties for intentional disregard were an integral part) and $985.67 million in money recouped. 25. In terms of proportionality, we have seen a continuing trend for harsher sentencing in relation to a number of the high profile Wickenby cases. 4 ATO, 2015, https://www.ato.gov.au/general/the-fight-against-tax-crime/news-and-results/tax-crime-prosecution-results/ 5 https://www.ato.gov.au/general/the-fight-against-tax-crime/news-and-results/project-wickenby-has-delivered/ 6 The Project Wickenby joint agency focus is now being managed through the Serious Financial Crime Taskforce. 7

26. In sentencing one of the promoters of tax evasion schemes involving Vanuatu arrangements, the New South Wales Supreme Court noted the following in handing down the head sentence of 8 years and 11 months: 7 It is hardly necessary to say that offences such as these call for sentences containing a strong element of general deterrence The Australian taxation system, based as it is on selfassessment, depends for its integrity upon the honesty of citizens. Of course, there will always be those who choose to cheat. They are cheating their fellow citizens, casting a greater burden on each of them. Further, when it is known that the system can be, and is, cheated, the very structures of society are damaged. The self-assessment system depends not only on the honesty of taxpayers, but on the confidence of taxpayers that others will make their proper contributions, or that, if they do not, they will be adequately punished. 27. In the case of Hili v The Queen; Jones v The Queen [2010] HCA 45, the High Court, in agreeing that the original jail sentences of seven months were manifestly inadequate, emphasised the importance of general deterrence as a sentencing consideration for serious tax crime. The sentences had been increased to a minimum 18 months by the New South Wales Court of Appeal and the High Court confirmed these sentences. 28. In addition to the above four categories of penalties, there are a range of other treatment options available to the Commissioner of Taxation to combat tax crime and assist partner law enforcement agencies in disrupting serious crime. For example, the ATO is an enforcement agency under the Proceeds of Crime Act 2002 (POCA) and through the Criminal Assets Confiscation Taskforce we co-operate with partner law enforcement agencies such as the Australian Federal Police to maximise confiscation efforts. The ATO is included in the Commonwealth s strategic, capability-led approach to combating serious and organised crime as an agency with shared responsibility for addressing the impact on Australia of serious and organised crime. The Commissioner of Taxation is a member of the Australian Crime Commission Board and of the Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA). The ATO is a member of the Serious and Organised Crime Coordination Committee, as well as the Joint Management Group and Joint Operation Groups. The Serious Financial Crime Taskforce is continuing the cross-agency co-operation which was a feature of Project Wickenby, and allows all partner agencies to take a broader view of the treatment options available to combat white-collar crime. 7 R v. Agius [2012] NSWSC 978 per Simpson J, at para 63. 8

Observations about the current penalty regime 29. Australia s penalty regime applicable to tax crime is broadly consistent with other comparable countries including the USA, UK and Canada. All jurisdictions impose penalties which generally increase proportionately to the level of harm the behaviour may result in, whilst also considering the offender s level of culpability. Another similarity is the tendency to utilise different types of penalties. These include administrative penalties, such as fines and infringement notices, civil penalties (which have a lower burden of proof) and also criminal penalties which are typically imposed in instances of dishonesty, intentional or reckless behaviour. A snapshot of the maximum financial penalties and jail terms available in these countries is provided below: Country Maximum administrative financial penalty for tax crime Maximum jail term for tax fraud Australia 90% of the tax shortfall 10 years Canada 200% of the tax shortfall 14 years UK 200% of the tax shortfall 10 years USA 75% of the tax shortfall 5 years (however other provisions may apply) Note: that the maximum administrative financial penalties and jail terms may only apply in certain, specified circumstances and may not be applicable to all forms of tax crime. 30. Australia s penalty regime for tax crime provides for a variety of treatment options that can be applied to behaviour according to the level of culpability and seriousness. 31. Overall, the penalty regime for tax crime appears to be fit for purpose in terms of its structure, the variety of penalty options and the maximum levels of penalties and criminal sanctions available. In addition, the ATO has a range of powers which support our ability to collect the financial penalties that we impose. The laws include the ability to garnishee bank accounts and Departure Prohibition Orders (DPOs) which prevent taxpayers with a taxation liability from leaving Australia. In practice, DPOs are rarely issued and usually only where significant revenue is at risk. As of 30 March 2016, there were 14 DPOs on hand. Between 1 July 2014 and 30 June 2015, nine DPO s were issued and five revoked. To further ensure that a DPO is appropriate to remain in force, quarterly case reviews are conducted for all active DPOs. It should be noted that the ATO may issue a DPO where it believes the revenue is at risk. Consequently not all of the DPO s issued by the ATO at any one time will relate to white-collar criminal activity. Generally we believe that these laws are effective in supporting the collection of penalties levied against white collar criminals. 9