What two offences does the provision place on a special withholding agent, and how does a file show which one is alleged?
General information · Not legal advice
Material to check
In a practice file we read the local tax documents showing that the person or body was the special withholding agent, the records of the tax that should have been withheld, and any receipts or proof of payment showing whether tax actually withheld was later paid over.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading keeps the two offences apart: the special withholding agent who, without justifiable reason, fails to withhold the local tax may be punished by a fine up to the amount the provision sets, while the agent who, without justifiable reason, fails to pay over tax already withheld faces imprisonment for the period the provision sets or a fine up to its amount.
Another reading notes that both offences turn on the agent's status and on the absence of a justifiable reason, so the provision leaves open what counts as a justifiable reason and does not say how the two duties overlap where some tax was withheld and part of it was never paid over.
Your judgment
When part of the withheld tax was paid over and part was not, how should the conduct be characterised as one offence or both?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change the penalties or to define justifiable reason, or if a court decision settles whether partial withholding and non-payment form one offence or two.