Finance Act 2011
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Amendment of Chapter 1 of Part 2 (consolidation and modernisation of general excise law) of Finance Act 2001. |
45.— Chapter 1 of Part 2 of the Finance Act 2001 is amended by inserting the following after section 99A: | |
“Penalty for deliberately or carelessly making incorrect returns, etc. | ||
99B.— (1) In this section— | ||
‘carelessly’ means failure to take reasonable care; | ||
‘liability to tax’ means a liability to the amount of the difference specified in subsection (11) or (12) arising from any matter referred to in subsection (2), (3), (5) or (6); | ||
‘period’ means taxable period, accounting period or other period, as the context requires; | ||
‘prompted qualifying disclosure’, in relation to a person, means a qualifying disclosure that has been made to the Commissioners or to an officer in the period between— | ||
(a) the date on which a person is notified by an officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, and | ||
(b) the date that the investigation or inquiry starts; | ||
‘qualifying disclosure’, in relation to a person, means— | ||
(a) in relation to a penalty referred to in subsection (4), a disclosure that the Commissioners are satisfied is a disclosure of— | ||
(i) complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (4), and | ||
(ii) full particulars of all matters occasioning any liability to tax or duty that gives rise to— | ||
(I) a penalty referred to in section 1077E(4) of the Taxes Consolidation Act 1997 , | ||
(II) a penalty referred to in section 134A(2) of the Stamp Duties Consolidation Act 1999 , | ||
(III) a penalty referred to in section 116 (4) of the Value-Added Tax Consolidation Act 2010 , and | ||
(IV) the application of section 1077E(4) of the Taxes Consolidation Act 1997 to the Capital Acquisitions Tax Consolidation Act 2003 , | ||
and | ||
(b) in relation to a penalty referred to in subsection (7), a disclosure that the Commissioners are satisfied is a disclosure of complete information in relation to, and full particulars of, all matters occasioning a liability to tax that gives rise to a penalty referred to in subsection (7) for the relevant period, | ||
and which is made in writing to the Commissioners or to an officer and signed by or on behalf of that person and is accompanied by— | ||
(A) a declaration, to the best of that person’s knowledge, information and belief, made in writing that all matters contained in the disclosure are correct and complete, and | ||
(B) a payment of the tax and duty payable in respect of any matter contained in the disclosure and the interest on late payment of that tax and duty; | ||
‘tax’ means any duty of excise; | ||
‘transaction’ means any action giving rise to a liability to, or relief from, tax; | ||
‘unprompted qualifying disclosure’, in relation to a person, means a qualifying disclosure that the Commissioners are satisfied has been voluntarily furnished to them— | ||
(a) before an investigation or inquiry had been started by them or by an officer into any matter occasioning a liability to tax of that person, or | ||
(b) where the person is notified by an officer of the date on which an investigation or inquiry into any matter occasioning a liability to tax of that person will start, before that notification. | ||
(2) Where a person furnishes a return or makes a claim or declaration for the purposes of any requirement of excise law and, in so doing, the person deliberately— | ||
(a) furnishes an incorrect return, or | ||
(b) makes an incorrect claim or declaration, | ||
then that person shall be liable to a penalty. | ||
(3) Where a person deliberately fails to comply with a requirement in accordance with any provision of excise law to furnish a return, then the person shall be liable to a penalty. | ||
(4) The penalty referred to— | ||
(a) in subsection (2), shall be the amount specified in subsection (11), and | ||
(b) in subsection (3), shall be the amount specified in subsection (12), | ||
reduced, where the person liable to the penalty cooperated fully with any investigation or inquiry started by the Commissioners or by an officer into any matter occasioning a liability to tax of that person, to— | ||
(i) 75 per cent of that amount where paragraph (ii) or (iii) does not apply, | ||
(ii) 50 per cent of that amount where a prompted qualifying disclosure is made by that person, | ||
(iii) 10 per cent of that amount where an unprompted qualifying disclosure has been made by that person. | ||
(5) Where a person furnishes a return or makes a claim or declaration for the purposes of any provision of excise law, and in so doing, the person carelessly but not deliberately— | ||
(a) furnishes an incorrect return, or | ||
(b) makes an incorrect claim or declaration, | ||
then that person shall be liable to a penalty. | ||
(6) Where a person carelessly but not deliberately fails to comply with a requirement in accordance with any provision of excise law to furnish a return, then the person shall be liable to a penalty. | ||
(7) (a) The penalty referred to— | ||
(i) in subsection (5), shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6), shall be the amount specified in subsection (12), | ||
reduced to 40 per cent in a case where the excess referred to in subparagraph (I) of paragraph (b) applies and to 20 per cent in any other case. | ||
(b) Where the person liable to the penalty cooperated fully with any investigation or inquiry started by the Commissioners or by an officer into any matter occasioning a liability to tax of that person, the penalty referred to— | ||
(i) in subsection (5), shall be the amount specified in subsection (11), and | ||
(ii) in subsection (6), shall be the amount specified in subsection (12), | ||
reduced— | ||
(I) where the difference referred to in subsection (11) or (12), as the case may be, exceeds 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12), to— | ||
(A) 30 per cent of that difference where clause (B) or (C) does not apply, | ||
(B) 20 per cent of that difference where a prompted qualifying disclosure is made by that person, | ||
(C) 5 per cent of that difference where an unprompted qualifying disclosure is made by that person, | ||
or | ||
(II) where the difference referred to in subsection (11) or (12), as the case may be, does not exceed 15 per cent of the amount referred to in paragraph (b) of subsection (11) or paragraph (b) of subsection (12) to— | ||
(A) 15 per cent of that difference where clause (B) or (C) does not apply, | ||
(B) 10 per cent of that difference where a prompted qualifying disclosure is made by that person, | ||
(C) 3 per cent of that difference where an unprompted qualifying disclosure is made by that person. | ||
(8) Where, for the purposes of any requirement under excise law, a person deliberately or carelessly produces, furnishes, gives, sends or otherwise makes use of, any incorrect invoice, registration number, credit note, debit note, receipt, account, voucher, bank statement, estimate, statement, information, book, document or record, then the person shall be liable to— | ||
(a) a penalty of €3,000 where that person has acted carelessly, or | ||
(b) a penalty of €5,000 where that person has acted deliberately. | ||
(9) Where any return, claim or declaration as is referred to in subsection (2) or (5) was furnished or made by a person, neither deliberately nor carelessly, and it comes to the person’s notice that it was incorrect, then, unless the error is remedied without unreasonable delay, the return, claim or declaration shall be treated for the purposes of this section as having been deliberately made or submitted by that person. | ||
(10) Subject to section 1077D(2) of the Taxes Consolidation Act 1997 , proceedings or applications for the recovery of any penalty under this section shall not be out of time by reason that they are commenced after the time allowed by section 105A. | ||
(11) The amount referred to in paragraph (a) of subsection (4) and in paragraph (a)(i) of subsection (7) shall be the difference between— | ||
(a) the amount of tax (if any) paid or claimed by the person concerned for the relevant period or transaction on the basis of the incorrect return, claim or declaration as furnished or otherwise made, and | ||
(b) the amount properly payable by, or refundable to, that person for that period or transaction. | ||
(12) The amount referred to in paragraph (b) of subsection (4) and in paragraph (b)(ii) of subsection (7) shall be the difference between— | ||
(a) the amount of tax (if any) paid by that person for the relevant period or transaction before the start, by the Commissioners or by an officer, of any inquiry or investigation where the Commissioners had announced publicly that they had started an inquiry or investigation or where the Commissioners or an officer have carried out an inquiry or investigation in respect of any matter that would have been included in the return if the return had been furnished by that person and the return had been correct, and | ||
(b) the amount of tax properly payable by that person for that period or transaction. | ||
(13) Where a second qualifying disclosure is made by a person within 5 years of that person’s first qualifying disclosure, then, as regards matters pertaining to that second disclosure— | ||
(a) in relation to subsection (4)— | ||
(i) paragraph (ii) shall apply as if ‘75 per cent’ were substituted for ‘50 per cent’, and | ||
(ii) paragraph (iii) shall apply as if ‘55 per cent’ were substituted for ‘10 per cent’, | ||
and | ||
(b) in relation to subparagraph (I) of subsection (7)(b)— | ||
(i) clause (B) shall apply as if ‘30 per cent’ were substituted for ‘20 per cent’, and | ||
(ii) clause (C) shall apply as if ‘20 per cent’ were substituted for ‘5 per cent’. | ||
(14) Where a third or subsequent qualifying disclosure is made by a person within 5 years of that person’s second qualifying disclosure, then, as regards matters pertaining to that third or subsequent disclosure, as the case may be— | ||
(a) the penalty referred to in paragraphs (a) and (b) of subsection (4) shall not be reduced, and | ||
(b) the reduction referred to in subparagraph (I) of subsection (7)(b) shall not apply. | ||
(15) A disclosure in relation to a person shall not be a qualifying disclosure where— | ||
(a) before the disclosure is made, an officer had started an inquiry or investigation into any matter contained in that disclosure and had contacted or notified that person, or a person representing that person, in this regard, or | ||
(b) matters contained in the disclosure are matters— | ||
(i) that have become known, or are about to become known, to the Commissioners through their own investigations or through an investigation conducted by a statutory body or agency, | ||
(ii) that are within the scope of an inquiry being carried out wholly or partly in public, or | ||
(iii) to which the person who made the disclosure is linked, or about to be linked, publicly. | ||
(16) For the purposes of this section, any return, claim or declaration submitted on behalf of a person shall be deemed to have been submitted by that person unless that person proves that it was submitted without that person’s consent or knowledge. | ||
(17) Where a person referred to in subsection (2), (3), (5) or (6) is a body of persons, then the person acting in the capacity of secretary to such body is liable to a separate penalty of €1,500 or, in the case of deliberate behaviour, €3,000.”. |