16 Key Tips for Your Court Appearance Over Unlodged Tax Returns

16 tips for going to Court for not lodging your tax returns


Tax Related Crimes

16 tips for going to Court for not lodging your tax returns

If you’ve received a “Complaint and Summons” from the ATO, you’re probably worried about what it’s going to be like to go to Court.

This article will tell you the key things you should know when you go to Court. It specifically applies to prosecution actions in the Adelaide Magistrates Court, but it may be helpful for you even if you’re matter is being heard in a different Magistrates Court.

Infographic with 16 tips for facing court over unlodged tax returns, including pre-court preparation and day-of advice.

Before you go to Court

Review the Complaint carefully

Here’s an example of the Complaint and Summons that you might have received : Form-2-Complaint-and-Summons_SAMPLE

Look closely at it for the following information:

  • your hearing date –  this is on the last page of the Complaint and Summons. In Adelaide, this will usually be at either 10am, 11:30am or 2:15pm on a Friday. It is important that you turn up for Court for this. If you absolutely can’t make it, then you can ask a lawyer to go to Court for you.
  • the charges – do the charges relate to unlodged GST returns (i.e. BAS) or unlodged income tax returns? You may even have received 2 Complaint and Summonses, one for GST returns and one for income tax returns.
  • check if the is ATO right – is the ATO correct in saying that the returns aren’t lodged? Sometimes a mistake is made. If a return has been lodged but is still referred to in the Complaint and Summons, you should call or email the ATO officer named at the top of the document to tell them you have already lodged that return.
Understand what you’re up against

The law prescribes maximum potential penalties might be if you’re convicted of all charges. These are just the upper limit prescribed by the law. The actual penalties are usually much lower and are determined by the Magistrate.

Lodge the outstanding returns

I recommend that you lodge all of your outstanding returns as soon as possible after receiving the Complaint and Summons. You can read more about why here.

Get some legal advice

Just because the ATO has brought the charges does not mean you will be convicted. You should speak to an expert in dealing with these charges – you may be able to have some of the charges dropped by the ATO.

Even if you can’t get the charges dropped, a lawyer can help you to make the best submission to the Court to keep the penalties as low as possible. Depending on your situation, it may also be appropriate to ask the Court to dismiss the charge or discharge you without proceeding to conviction – a lawyer can help with this.

A word of warning – a criminal charge from the ATO is not like any other criminal charge. Tax is a specialist area. You need someone who knows your tax obligations. They need to be able to recognise when the ATO has made a mistake, or when there might be an opportunity to have the charges dropped. A lawyer who specialises in traffic offences, for example, won’t usually know how to deal with the ATO for tax related charges.

[callout]I regularly represent clients when they are charged with offences by the ATO in Adelaide, and I do so for a fixed fee.[/callout]

On the day of Court

If you have a lawyer, then they should tell you exactly what to expect when your day in Court arrives. If you’re representing yourself, then read on for some tips on what you can expect and how you can make your day in Court less stressful.

Be prepared

Before you even think about going to Court, be prepared and know what you want to happen.

If you want to ask for an adjournment, be prepared to answer questions about why it should be granted.

If you are going to enter a guilty plea, then be ready to make submissions to the Court about what your penalty should be (i.e. why it should be as low as possible).

You should speak to a specialist tax lawyer before Court. Make sure that you are not pleading guilty to charges that you may be able to have withdrawn.

[callout]If you’ve received a Complaint and Summons from the ATO in Adelaide and want to talk strategy, call me to book a consultation.[/callout]

Check the case list

On the morning of your hearing, you should check the Magistrates Court case list. This will tell you what courtroom you are in, and the name of the Magistrate who will hear your case. The Case List can be accessed here.

Give yourself plenty of time to get to Court

Going to court can be stressful. Make it easier on yourself by leaving plenty of time to get there.

How to get there

The Adelaide Magistrates Court is on Victoria Square (near the Angas St and King William St corner). There are on-street parks nearby. You can also park in the U-Park that is accessible via Gouger St and Grote St. Or you may prefer to catch the tram – the Magistrates Court is an easy walk from the Victoria Square tram stop.

What to wear

You don’t need to dress in a suit to go to Court, but you should do your best to look neat and tidy. It’s best not to show up in a singlet and thongs.

Entering the Courthouse

You will need to go through security to access the court, just like at the airport.

The Courts are located on the ground floor and Levels 1, 2 and 3.

Courtrooms 1 to 4 are on the ground floor and there is a list in the elevator to tell you where the other Courtrooms are located.

Before you enter the Courtroom

Before you enter the Courtroom, you should

  • turn off your mobile phone
  • remove your hat and sunglasses from your head
  • dispose of any chewing gum, food or drinks
When you get to Courtroom

When you get to the Courtroom, you will need to check in with the Sherriff’s Officer (who sits at a desk inside the Courtroom). Let them know you’ve arrived. They will also ask what the plan is for the day – if you intend on asking for an adjournment, then let them know.

You should also have a look for the ATO officer. They will usually have a quick chat with you about your case and tell you what they think the next steps should be. This is usually a very short conversation. If you need to have a more detailed discussion with the ATO officer, you should call them before going to Court.

If the Magistrate is at the front of the room when you get there, then enter quietly. You should pause for a moment near the door and bow your head towards the Coat of Arms behind the Magistrate. Then take a seat and wait for the Magistrate’s assistant to call your name.

If the Magistrate enters or leaves the Courtroom while you are in there, then you should stand and bow towards the Coat of Arms. Remain standing until the Magistrate either invites you to sit, or has left the room.

When you are called

When you are called, you will usually go and stand in the dock. The dock is on different sides in different courtrooms, so look for the area surrounded by glass.

Some Magistrates will ask you to come forward to the table (next to where the ATO Prosecutor is sitting). The Sherriff’s Officer will direct you.

Be polite to the Magistrate and the ATO Prosecutor. Do not interrupt. Only speak when asked to by the Magistrate.

Address the Magistrate as ‘Your Honour’, ‘Sir’ or ‘Madam’.

Stay in the dock, or at the table, until the Magistrate tells you that you can leave.

Asking for an adjournment

If you need more time to lodge your returns or get legal advice, then you can ask the Court to give you more time. This is an ‘adjournment’.

Generally, you would speak to the ATO officer responsible for your file before the court date and let them know you will be asking for more time. You can find their details on your Complaint and Summons. The ATO is usually happy to consent to a couple of adjournments, to allow you to get everything in order.

Ultimately, it is up to the Magistrate (not the ATO) to grant the adjournment. Make sure that you ask the Magistrate for the adjournment. Never, ever tell the Magistrate that the matter is being adjourned.

You can’t use adjournments to defer your matter indefinitely. Magistrates will usually allow you an adjournment if you can show a good reason.

A good reason might be that you are working on getting your tax returns lodged, and you can show that you have already made some progress.

A bad reason might be that you simply haven’t gotten around to getting legal advice, and you’ve already had one or two adjournments.

A Magistrate can refuse to grant an adjournment and insist that your charges are progressed.

Entering your plea

If your returns are lodged and you are ready to enter a plea, then tell the Magistrate this. You will then formally enter a plea (guilty or not guilty). Usually it is guilty for these kinds of offences.

Before you enter a guilty plea, you should investigate whether it is possible to have any charges withdrawn. This is where it pays to have a specialist on your side. Someone who knows both the tax law and how these charges work.

[callout]In 2017, I helped:

  • over 40% of my clients charged for not lodging tax returns or documents to have all of their charges dropped by the ATO
  • another 30% to have at least some of their charges dropped by the ATO[/callout]

Once you have entered a guilty plea, you will then be asked to make submissions to the Court to help the Magistrate decide on your penalty. These submissions are important, because the maximum penalty for each offence is very high.

Leaving the Courtroom

If the Magistrate is still in the Courtroom when it is time for you to leave, you should walk towards the door, turn to face the Coat of Arms and bow your head. You can then exit.

How long will it take

It is difficult to say how long any court appearance will take. This is because it will depend on how many other people are in Court at the same time as you, and what happens in their case. For example, if everyone is asking for adjournments, then it can be rather quick. However, if other people are making submissions, then it can take much longer.




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