T was accused of breaching the VAT Act by, for the period 01.01.2013-31.12.2013, with the intention of evading tax from the state treasury, as director and sole responsible person in a limited company, having concealed information for use in the tax audit. T was also charged with tax fraud of a particularly serious nature by, for the income year 2009, with the intention of evading public tax, having submitted misleading information for use in determining the tax assessment or tax calculation, as T failed to inform the tax authority of a distribution from the company. T was also prosecuted for tax fraud of a particularly serious nature by, for the income years 2011-13, with the intention of evading public tax, having failed to notify the tax authority within 4 weeks after the expiry of the tax return deadline that the tax assessment was too low, since distribution from her company was not included in the tax assessment. T had thereby evaded a total of DKK 74,041.22 in VAT and DKK 594,004.44 in tax.
T explained that she ran the company first as personally owned, then through the company, where she was director and owner of the shares. She was responsible for the operation of the company, but she has not had insight into the company’s accounts. She had a bank account with an associated card, which she used both for private and company expenses. She collected the documents and handed them to the accountant. The accounts were prepared by the auditor. She simply signed, but did not understand the content. She assumed the accountant was also responsible for her private tax return, but she had no insight into that. She had no other income.
The district court acquitted T of breaching the VAT Act by concealing information for use in tax control, as the indictment did not meet the requirements of section 834 of the Administrative Procedure Act. The defender had therefore not had a real opportunity to properly organize his defense, as it was not clear from the indictment at which times T should have submitted the information, including whether it was quarterly or half-yearly reports. Relationships committed before December 6, 2013 were out of date.
The district court found T guilty of intentional tax fraud in both cases. The court found it proven that T had a mix-up of his own and the company’s finances, as there was only one bank account, and that despite his own insolvency, T withdrew large sums from the company without this being salary. T was found to have had probable intent for the tax evasion on the basis of the information available in the case and her explanation for the case. The size of the evasions was found to be documented. The court also found that it was a total period of 2009 and 2011-2013, which is why the evaded amount exceeded DKK 500,000, and that the circumstances were therefore covered by § 289 of the Criminal Code and thus not outdated. The court thereby placed emphasis on testimony from the customs and tax administration that the background for,
T was sentenced to 3 months in prison conditional on the condition that she does not commit a criminal offense during the probationary period and submits to the supervision of the Correctional Service, as well as an additional fine of DKK 594,000. When sentencing, the court emphasized the size of the embezzled amounts and, in mitigation, the time spent had gone since the conditions were committed. For health reasons, T was not given conditions for community service. T was acquitted of the compensation claim, as she was acquitted of breaching the VAT Act.
T appealed the sentence. The prosecution counter-appealed and requested a conviction in accordance with the indictment brought in the district court, although in relation 1 only a conviction takes place for the first half of 2013.
The High Court upheld the judgment of the district court, as the additional fine was determined in accordance with section 289, subsection of the Criminal Code. 3, cf. section 50, subsection 2.
Regarding acquittal for breach of the VAT Act, the high court emphasized that the relationship was out of date, as a 5-year limitation period applies. The High Court referred to the fact that, in a letter dated 5 September 2017 to the police, SKAT had requested the prosecution to file charges together in all three cases included in the indictment, and on this basis, and since it was not documented during the case that the police should have charged defendant, or that the prosecution should have requested procedural steps by which the defendant was charged before the indictment, which was received by the district court on 13 December 2018, the high court found that the relationship was out of date under these circumstances. The High Court agreed with this reasoning that the defendant was acquitted of the charges.
It appears from the high court’s judgment that the indictment was considered to meet the conditions in section 834, paragraph 1 of the Administrative Procedure Act. 2, no. 4. The High Court emphasizes that the indictment contains a brief description of the matters for which the indictment has been brought, with an indication of the time, place, object and method of execution, as well as information about which income year the indictment relates to, which amounts calculated on the individual income years in which the income was determined to be too low, and which amounts calculated on the individual income years that were evaded from the public sector.
Source: skat.dk
