Taxpayer Guilty Until Proven Innocent

Jan 13, 2016
Reading Time: 2 minutes
Written by Dominic Woolrych

You’ve just started generating a profit for your small business and you’ve never been more excited. You should be excited. Many businesses don’t even make it that far.

The time has come to do your taxes and you’re a little confused about what expenses you can claim. If you read our post on the proposed new offence for false accounting, you’d know that even a small mistake when doing your taxes can have significant consequences.

Unlike other areas of the law, If you are charged with tax evasion, you shoulder the burden of proving your innocence.

Recent tax law developments you need to know about

A recent parliamentary inquiry has pushed for a radical overhaul of current tax laws which give the Australian Taxation Office (ATO) powers to gather information to prosecute suspected tax evaders. Taxpayers alledge that ‘cowboy auditors’ have been treating taxpayers unfairly.

House Tax Committee chairman Bert van Manen said that if the allegation of fraud and evasion was being made, and the ATO was seeking to hit people with a tax bill dating back beyond five years, then all taxpayers – from small-business people to big companies such as Glencore and Commonwealth Bank – should be given the benefit of doubt.

Despite the hit-back, small business owners and individual taxpayers with large tax bills will continue to be presumed guilty until proven innocent.

Where to appeal if you’re accused of tax evasion

The recent tax disputes inquiry, chaired by Queensland Liberal National MP Bert van Manen, had recommended the ATO take on the burden of proving fraud or evasion in some cases. However, it made no recommendation that the ATO be split in two, a suggestion made by former treasurer Joe Hockey prior to the Coalition taking power.

The ATO has fiercely resisted the establishment of a second Commission to handle appeals. The ATO has aimed to create a new area within their own department which has responsibility for taxpayer appeals, and provide taxpayers with in-house mediation.

Tax Commissioner Chris Jordan has claimed that the new area will provide small business owners with a ‘fresh set of eyes’ to review their case in the event of a dispute.

What this means for your small business

With the ATO’s extensive powers to gather information and the absence of a presumption of innocence, you can’t afford to not have your accounts in order.

The government has dismissed the inquiry’s recommendation that the onus should be on the ATO to prove that an accused taxpayer is guilty of evasion and the establishment of a separate appeals area under a different Commissioner.

This means that it has never been more important to have a qualified lawyer or accountant ensure you are compliant with all relevant tax and accounting laws.

Let us know your thoughts by tagging us #lawpath or @lawpath.

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