Preserving your fair trial rights
Now one would hope, that not too many of us will ever be subject to criminal proceedings by IR, however just in case you are facing this, IR has recently issued Commissioner’s Statement CS 20/04, ‘The disputes resolution process and fair trial rights’.
CS 20/04 sets out how IR will approach a scenario where the taxpayer is subject to both potential prosecution as well as timing obligations to comply with the disputes resolution process. In this regard, IR has acknowledged the concerns, that a taxpayer may be compelled to disclose their defence to criminal proceedings in their disputes documents, which in turn could impact on their fair trial rights.
CS 20/04 now confirms that:
- When criminal proceedings have commenced or are contemplated, the taxpayer will be advised of that position before they are required to issue a disputes document (such as a NOPA or NOR).
- Taxpayers can already issue a response outside the response period in ‘exceptional circumstances’. IR will accept that preserving a taxpayer’s rights in current or potential criminal proceedings is an ‘exceptional circumstance’ which prevents a taxpayer from responding to the assessment or notice within the applicable response period.
- Taxpayers can elect not to file an outstanding disputes document until the question of prosecution is resolved. This will delay the requirement to respond and therefore either delay the start or pause the disputes process.
- Once the question of prosecution has been resolved, then the disputes process can resume (or in some cases commence) and IR will advise the taxpayer of this. The taxpayer will need to issue their outstanding disputes document by the later of two months from the date of this advice or the original due date for that outstanding disputes document.
CS 20/04 is effective from 22nd July 2020.
This article from the 'A Week in Review' newsletter was originally published; Monday 10th August 2020. If you have any questions or would like a second opinion on any national or international tax issues, please contact me [email protected].
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