Commentary

A4.567A Harmonised penalties—common concepts: deliberate behaviour

Administration and compliance

A4.567A Harmonised penalties—common concepts: deliberate behaviour

A4.567A Harmonised penalties—common concepts: deliberate behaviour

The harmonised penalty regime for inaccuracy in a document (see A4.530), failure to notify liability (see A4.540) and failure to file returns on time (see A4.550) takes into account whether the underlying behaviour which gave rise to the inaccuracy or failure was deliberate and, if so, whether or not it was also concealed. As regards late filing penalties, this generally applies only where the return is at least 12 months late.

Deliberate behaviour or conduct results in a higher penalty than mere carelessness or lack of a reasonable care (for which see A4.532A). Deliberate conduct is not statutorily defined but can be taken to mean conscious and intentional acts or omissions. Genuine mistakes, however serious or stupid, are not examples of deliberate behaviour. In other words, the test is subjective ('did the taxpayer intend to commit the default?') rather than objective ('would the default have been committed by a reasonable person in the taxpayer's position?').

Deliberate or deliberate and concealed?

Deliberate misconduct is subdivided into two further degrees of culpability1:

  1.  

    •     'deliberate and concealed', which occurs if the default is deliberate on the taxpayer's part and they 'make arrangements to conceal it'

  2.  

    •     'deliberate but not concealed', which occurs if the taxpayer does not make arrangements to conceal it but the default is still deliberate on their part

The greater culpability involved in deliberate and concealed misconduct results in a higher level of penalty.

In the case of penalties for inaccuracy in a document, the legislation gives

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