Cap. 406 Art. 84ASpecialmechanism for out of court settlements.

(1) Notwithstanding any other provision of this Act or of any other law, upon the conclusion of an agreement made in terms of this article between the Commissioner and any person obliged to make any payment under this Act, hereinafter in this article referred to as the "debtor" or the "taxpayer", providing for the payment of an additional penalty together with any other penalties otherwise provided in this Act, all criminal liability of the debtor for any breach against this Act and for any connected breach in respect of the acts in relation to which the agreement has been entered, shall be extinguished:

Provided that the additional penalty that such person shall be liable to pay in respect of such breach or breaches shall amount to a minimum of ten thousand euro (€10,000) and a maximum of one million euro (€1,000,000), and shall be imposed in terms of a Schedule to be prescribed by the Minister under this Act, and this in addition to any other amount provided for in this Act for the debtor’s default and quantified according to the final agreement:

Provided further that the agreement to pay any fine or make any other payment under an agreement as provided for in this article shall not extinguish any civil liability to make any payment not covered by the agreement entered into in terms of this article.

(2) (a) The provisions of this article shall apply where the Commissioner, acting upon the written request of the taxpayer and the notification of adjustment of previous declarations given by the taxpayer, accepts that the adjustments have been correctly made and shall give notice in writing to the taxpayer of a draft agreement in terms of this article to be signed within six (6) months from the date of the request of the taxpayer:

Provided that the said period of six (6) months may be extended by the Commissioner if he is satisfied that a longer period is required to determine the extent of the proceeds of the breach.

(b) The draft agreement shall include the following:

(i) details of the breach or breaches which may include admissions made by the debtor;

(ii) an obligation upon the debtor to pay and a quantification of an additional penalty and any other payment due in terms of this Act for the default;

(iii) the period allowed for the payment of the amounts due under the agreement;

(iv) the consequences of any failure to comply with any terms of the agreement including those provided in articles 187A,

187B and 187C of the Criminal Code;

(v) any other terms and conditions imposed by the Commissioner:

Provided that when a draft agreement is notified as aforesaid, an agreement in terms of this sub-article shall be signed and returned to the Commissioner within one (1) month, and if the signed agreement is not received by the Commissioner within the said timeframe, which may be extended by the Commissioner upon reasonable cause being shown by the taxpayer, the provisions of this article shall have no effect:

Provided further that the amount resulting from this agreement shall constitute an executive title within the meaning of and for the purposes of Title VII of Part I of Book Second of the Code of

Organisation and Civil Procedure.

(3) The period of prescription in respect of the breach and connected breaches shall be suspended during the times established in, or under sub-article (2) and no prosecution shall be instituted in respect of the breach and connected breaches during the time when those periods are running:

Provided that no prosecution shall be annulled on the ground that it was instituted in violation of this sub-article.

(4) The provisions of this article shall also apply upon the request of the debtor in any case where the debtor has been charged before a court in relation to the breach or breaches and connected breaches, but before final judgment has been given in the case.

(5) Where proceedings are pending before the Court of Magistrates as a court of criminal inquiry and the existence of an agreement is brought to the Court’s notice, the Court shall, upon being satisfied that the breach or breaches mentioned in the charge are breaches to which this article applies or connected breaches, assume the function of a court of criminal judicature and declare the criminal action extinguished in respect of such charges. The Court shall likewise declare the criminal action extinguished if it is a court of criminal judicature whether at first instance or at appeal stage notwithstanding any previous judgment delivered in the cause which has not become final.

(6) In this article:

"agreement" means and includes a document evidencing an agreement reached between the Commissioner and the debtor in terms of this article and also includes a document or a declaration issued by the Commissioner after the coming into force of this article confirming that the debtor has before the coming into force of this article regularised his position with the Commissioner and has after the coming into force of this article satisfied the requirements thereof by accepting to pay the additional penalty;

"breach" or "breaches" includes any act or acts which constitute a criminal offence;

"Commissioner" means the Commissioner for Tax and Customs;

"connected breach" means any act which constitutes a criminal offence committed in pursuance of committing a breach against this Act and shall include:

(i) a breach committed, even if at different times, in pursuance of a pre-concerted plan to commit a breach against this Act;

(ii) a breach committed with the object of procuring the means for the commission of a breach against this Act;

(iii) a breach committed with the object of facilitating the commission or completion of a breach against this Act, or of ensuring impunity for such a breach;

(iv) a breach which in a single context violates more than one provision of law where at least one provision relates to a breach against this Act;

(v) a breach committed through the apparently legitimate use of the proceeds of a breach against this Act:

Provided that a connected breach shall not include any act included in Sub-title IV of Title III of Part II of Book First of the Criminal Code;

"this Act" includes any subsidiary legislation issued thereunder.