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The role of the criminal law for serious non compliance


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.

Author profile

Kalmen Datt
Kalmen is a senior lecturer in the School of Taxation and Business Law at the University of New South Wales, Australia and teaches courses which include GST, CGT, International Tax and Tax Litigation. Kalmen was previously a barrister in South Africa and a solicitor/barrister in NZ and has been admitted as a solicitor in Australia. He has practiced in courts of first instance and appeal. He has completed courses in mediation and has appeared in mediations and arbitrations as counsel. Prior to immigrating to Australia, Kalmen was a solicitor with Inland Revenue (IRD) in NZ advising on tax issues and was an advisor to a specialist anti avoidance team at IRD. He assisted the School of Business at the University of Auckland in teaching various tax courses. Kalmen has successfully completed the Common Professional exams in the UK. - Current at 21 October 2019
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