ATO & Tax Lawyers › ATO Fraud & Evasion Allegations
ATO Fraud & Evasion Lawyers — Unlimited Amendments. Serious Penalties. Urgent Advice.
An ATO fraud or evasion allegation is among the most serious legal situations a taxpayer can face. The ATO's amendment power is unlimited — it can go back as many years as it considers appropriate. Penalties of up to 75% of the shortfall apply. The ATO can refer the matter to the CDPP for criminal prosecution. A tax lawyer must be engaged immediately — before responding to any ATO request or making any disclosure.
⚠ Where fraud or evasion is alleged, there is no time limit on the ATO's power to amend assessments. Voluntary disclosure before the ATO commences an investigation can reduce penalties from 75% to as little as 5% of the shortfall — and significantly reduces the risk of criminal referral. Get urgent advice now.
ATO Fraud & Evasion Matters We Handle
From voluntary disclosure to criminal defence — specialist ATO fraud representation.
Responding to Fraud & Evasion Allegations
Where the ATO alleges fraud or evasion, a lawyer manages every aspect of the ATO's investigation — controlling information provided in response to s353-10 notices, asserting legal professional privilege over all communications with the lawyer, managing the ATO's access to documents, and preventing the investigation from expanding beyond its proper scope.
Voluntary Disclosure Management
Voluntary disclosure before the ATO commences an investigation can reduce shortfall penalties from 75% to as little as 5% of the shortfall, and significantly reduces the risk of criminal referral to the CDPP. A lawyer advises on whether voluntary disclosure is appropriate, prepares the disclosure in the most favourable terms, and negotiates penalty and GIC remission as part of the disclosure process.
Challenging the Fraud or Evasion Finding
The ATO's power to amend assessments without time limit only arises where the Commissioner is satisfied that there has been fraud or evasion. A lawyer challenges the ATO's characterisation of the taxpayer's conduct — distinguishing aggressive tax planning, accounting errors, and genuine disputes from fraud or evasion — and pursues the challenge through the objection and appeal process.
Criminal Tax Prosecution Defence
Where the ATO refers a matter to the Commonwealth Director of Public Prosecutions (CDPP) for criminal prosecution, a lawyer immediately takes control of all communications with the ATO and CDPP, advises on the privilege against self-incrimination, manages the investigation, and prepares the criminal defence — from the investigation through to trial if required.
Penalty Remission for Fraud Penalties
Even where a fraud or evasion finding is upheld, the 75% shortfall penalty can be reduced by voluntary disclosure (made before or after the investigation commences) and by the taxpayer's cooperation with the ATO. A lawyer prepares comprehensive penalty remission submissions that identify all available mitigating factors and seek the maximum reduction in penalty.
ATO Project Investigations
The ATO runs targeted compliance projects — including Project Do It (offshore income), Project Wickenby (international tax avoidance), and various cash economy and specific industry projects. Where a taxpayer is the subject of an ATO project investigation, a lawyer manages the engagement with the ATO's specialist investigation team and identifies the most effective strategy for resolving the matter.
The Legal Framework
ATO fraud and evasion — the legal consequences.
Unlimited amendment period — s170(1) ITAA 1936
Under s170(1) of the ITAA 1936, where the Commissioner is of the opinion that there has been fraud or evasion, there is no time limit on the power to amend an income tax assessment. This contrasts with the standard amendment period of 2 years (individuals and SBEs) or 4 years (other taxpayers). The practical effect is that the ATO can assess additional income tax for any year — including years where the taxpayer believed the assessment was finalised. A lawyer challenges the ATO's opinion that fraud or evasion has occurred as the first step in any fraud and evasion dispute.
Fraud vs evasion — the distinction matters
"Fraud" in the tax context requires an intentional, dishonest act — for example, deliberately omitting income or falsifying invoices. "Evasion" is a broader concept that includes wilful disregard of tax obligations — it does not require an intention to defraud, but does require more than mere negligence or honest mistake. The distinction matters because fraud can support a criminal prosecution, while evasion typically results in civil penalties only. A lawyer identifies which concept applies to the taxpayer's specific conduct and frames the defence accordingly — including distinguishing the taxpayer's conduct from the ATO's characterisation.
Criminal prosecution — s8T and s8N TAA 1953
Under s8T of the TAA 1953, it is an offence to evade tax — punishable by up to 2 years imprisonment per offence. Under s8N, it is an offence to make a false or misleading statement to the ATO — punishable by up to 12 months imprisonment. Criminal tax prosecutions are conducted by the Commonwealth Director of Public Prosecutions (CDPP) in the Federal Court or (for less serious matters) the Federal Circuit Court. The standard of proof is beyond reasonable doubt — significantly higher than the civil standard. A lawyer who manages the investigation from the outset can prevent the matter from reaching the CDPP.
Shortfall penalties for fraud — Subdivision 284-B ITAA 1997
Under Subdivision 284-B of the ITAA 1997, the shortfall penalty for intentional disregard of tax law (which includes fraud) is 75% of the shortfall amount. This penalty can be reduced by voluntary disclosure — to 20% if disclosure is made before the ATO commences an audit or investigation, and to 40% if disclosure is made after the audit commences but before the position paper is issued. Even a 40% reduction — from 75% to 45% — can be significant on a large shortfall. A lawyer manages the timing and scope of any voluntary disclosure to maximise the penalty reduction.
Legal professional privilege — the critical protection
Where an ATO fraud or evasion investigation is underway, all communications between the taxpayer and their lawyer are protected by legal professional privilege. The ATO cannot compel the lawyer or the taxpayer to disclose privileged communications — including legal advice about the taxpayer's obligations, the strength of the ATO's case, or the strategy for responding to the investigation. Privilege is lost if the client voluntarily discloses the communication, so it is critical that the taxpayer does not discuss their lawyer's advice with the ATO, their accountant, or third parties. A lawyer manages all communications with the ATO through a privileged channel from the outset.
Voluntary disclosure — the most effective risk mitigation
A voluntary disclosure made before the ATO commences an audit or investigation on the relevant matter reduces the shortfall penalty for fraud from 75% to as little as 5% (where the disclosure is unprompted and complete). It also significantly reduces the risk of criminal referral — the ATO's published guidance indicates that voluntary disclosure is a significant factor in the decision whether to refer a matter to the CDPP. A lawyer who is engaged before any ATO contact has been made can prepare a comprehensive voluntary disclosure that maximises the penalty reduction and minimises the risk of prosecution.
How It Works
One request. Free urgent fraud & evasion advice.
Tell us the nature of the ATO contact (audit, investigation, allegation letter, or CDPP referral), the years under investigation, and whether any information has already been provided to the ATO. A lawyer will contact you urgently.
Submit Your RequestDescribe the ATO contact
Tell us the nature of the ATO contact (allegation, investigation, criminal referral), the years under investigation, what the ATO has alleged, and whether any information has already been provided to the ATO or CDPP.
Matched to a tax fraud lawyer
Your request is matched to a tax lawyer experienced in ATO fraud and evasion investigations — who understands the investigation process, voluntary disclosure, criminal defence, and the objection and appeal pathway.
Free urgent consultation
A tax lawyer contacts you urgently — assessing the exposure, advising on whether voluntary disclosure is appropriate, and providing a clear strategy for managing the investigation and minimising the consequences.