According to the summary of facts Win was a sole trader, operating under the name Win Building.
Between November 2017 and September 2019, Win employed eight workers and deducted PAYE from their wages and filed PAYE returns with the Commissioner of Inland Revenue, accounting for the deductions from employees’ wages.
But for each month within that period except May and July 2018, Win did not pay the deducted amounts to the IRD by the due date.
The amount of the assessed PAYE deductions not paid by the due date totalled $226,763. Late payments amounting to $49,958 had reduced the assessed amount to $176,804.
“Analysis of the Win Building bank account showed that on 19 occasions there were funds available to pay the PAYE by the relevant due date, or at least make a part payment. However, those funds were instead used for other purposes such as personal expenditure.”
Win was also found to have not paid $133,084 in GST and $18,951, amounting to $328,840 in unpaid taxes.
Investigation of Win’s bank accounts revealed he used the Win Building account for “significant personal expenditure over the tax periods in question”.
Some of the “personal expenditure” included Uber and Uber Eats, debt recovery services, cash withdrawals, drawings and overseas transactions in the USA, Mexico, and Australia totalling to $224,942.
Win was adjudicated bankrupt on August 20, 2020.
Win’s lawyer said he had been making payments from his weekly wages and has plans to continue paying off his IRD debt.
The court heard that Win had sold his vehicle to help make these payments, but Judge Couch raised the point of whether this was done voluntarily or because he was declared bankrupt, and his vehicle would have been seized otherwise.
Judge Couch rejected the argument that some of Win’s spending was not for personal enjoyment and said he would describe it as “discretionary expenditure.”
Because Win’s offending was over a long period of time the judge said any suggestion that he is of good character “rather goes out the window”.
Judge Couch said Win was made aware of his obligations and had the means to readily make the payments to IRD but instead used the money for his own personal expenditure, breaching the trust of his employees in doing so.
The court heard that Win had been working to pay back his debts and the officer assignee on the case was “impressed by his attitude” and believed he showed genuine remorse.
Win also had experienced stress from the IRD investigation and media attention but the judge said these are not mitigating factors, but rather “natural consequences” for his actions.
Judge Couch acknowledged that Win had made a genuine effort to pay back his debt and gave him discounts for his guilty pleas and genuine remorse for his actions.
The judge arrived at an end sentence of 12 months’ home detention, saying Win avoided jail by a “small margin”.
