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Why have prosecution provisions?
Prosecution provisions ensure compliance with the FIF record keeping measures. These provisions generally correspond with the prosecution provisions of the CFC measures. However, you cannot be prosecuted for failing to keep records before 18 December 1992.
The court may impose a maximum penalty of 30 penalty units if you are convicted of a breach of the FIF and FLP record keeping requirements. [section 621]
Section 4AA of the Crimes Act 1914 sets out the value of a penalty unit. In April 2006, one penalty unit equalled $110.
You must keep records of the information on which you based your calculation of FIF income. If you do not have access to full information relating to a FIF, do not use the calculation method. If you are prosecuted for failing to keep records of underlying accounts and accounting records in relation to the calculation method, you may rely, in certain circumstances, on a statutory defence. The defence may apply if you made reasonable efforts to obtain the required documents but were unable to get them and you based your calculation on information you believed to be contained in the accounts (other than published accounts). [section 623]
As a partnership is treated as a person under the record keeping provisions, the record keeping and related prosecution provisions apply to partnerships. An offence committed by the partnership is treated as having been committed by each of the partners. [subsections 624 (1) and (2)]
However, a partner prosecuted for such an offence may have a defence where it can be proved they were not knowingly involved in any way in the commission of the offence. [subsection 624(3)]
Last modified: 01 Jul 2006QC 18507