Published on 01 Jul 13
by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE
The regulatory regime followed by the ATO suggests that initial responses rely on negotiation whilst making it known that the regulator is prepared to progressively escalate proceedings, until, if necessary, the full force of the law is employed. This approach raises a number of questions: What role should the criminal law play in ensuring a corporation complies with its tax obligations; and if the criminal law is used who should be the subject of the criminal proceedings: the company, its agents, or both?
This article seeks to answer these questions. After a review of the literature the author concludes that greater use should be made of the criminal law by the Commissioner where there is serious non-compliance and that liability should attach to both the company and those of its agents that participate in the wrongdoing.
Kalmen Datt FTIA is a Senior Lecturer at ATAX with extensive experience as a barrister having appeared in courts at all levels in South Africa
and New Zealand. He is admitted as a legal practitioner in NSW. He has hands-on experience in tax having worked for the New Zealand Inland
Revenue authorities as a solicitor and team leader in their Technical Legal Support Group where he inter alia had sole responsibility for advice to one of the Anti Avoidance teams as well as advising on all other tax issues. He lectures in Principles of Australian Tax, GST, CGT, Tax Administration, Tax Litigation and the New Zealand component of Asia Pacific Tax Regimes and was the recipient of a UNSW Learning and Teaching Award in 2005 Current at September 2008
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