The National Counter Corruption Commission (NCCC) yesterday resolved to indict Revenue Department director-general Sirote Swasdipanich and four other senior officials on criminal and disciplinary charges for allegedly failing to tax Bhanapot Damapong, who acquired 4.5 million shares of Shin Corp as a "gift" worth Bt738 million.

The decision follows the Assets Examination Committee's (AEC) primary ruling in November that Bhanapot, a brother of Khunying Pojaman Shinawatra, had to pay Bt546 million in tax for the Shin Corp shares he acquired in 1997 from a domestic helper of the Shinawatra family.

NCCC chairman Panthep Klanarongran said the commission had found grounds to believe that Sirote, then deputy director-general of the Revenue Department, and the four other officials failed in their duty to tax Bhanapot.

The other officials are Vichai Jungrakkiat, then director of the Legal Office; legal officer Suchinda Saengchompu; C-8 legal officer Morirat Bunyasiri; and C-7 legal officer Kulluedee Saengsayan.

They are to face charges of malfeasance and exempting tax collection, under articles 154 and 157 of the Criminal Law. They will also face charges of a disciplinary offence in accordance with Civil Service Directive Act 1992, Articles 82, 85 and 98.

The NCCC will submit the investigation file within a week to the attorney-general for prosecution.

NCCC member Klanarong Chantik said the investigation into the deal had originated from the commission's probe into the assets declaration of then prime minister Thaksin Shinawatra and its indictment against him for asset concealment. The Constitution Court acquitted him of the charges in August 2001.

The Revenue Department testified in support of Thaksin, saying that Bhanapot was exempted from paying tax because he had received the shares from Pojaman as a wedding gift in accordance with tradition and custom.

However, the NCCC later appointed a subcommittee to further investigate whether the transfer of shares qualified for exemption from tax according to Article 42 of the Revenue Code. The investigators' brief also covered possible offences by Revenue Department officials related to the transaction.

The panel found that Pojaman did not have a duty to support Bhanapot, who had sound financial status. Besides, he was receiving benefits from her in return for his work.

According to Article 1461 of the Civil Law, only spouses have a duty to support each other, while according to Article 1563, children have a duty to support parents.

There was also a Supreme Court ruling which set a norm for the duty to provide support according to custom and tradition, and this case did not fall under that norm, the NCCC said.

The NCCC also dismissed claims that the share transfer was a wedding gift because Bhanapot registered his marriage on January 1996, long before the share transfer in November 1997.

Klanarong said that if the share transaction was meant to be transparent, the people involved should have just transferred the shares and not concealed the transaction through a nominee.

He said the four Revenue officials had ruled on the tax exemption without providing proper justification or protecting the public interest. They failed to investigate whether the share transaction qualified as a gift.

Klanarong said the Revenue Department deputy director-general at the time had twice opposed their decision, on September 14 and 24, 2001, before he was moved out of the post.

Sirote was transferred in his place and acknowledged the transaction on September 28 and endorsed the ruling on October 1 after Morirat had explained the matter to him.

The NCCC found that Sirote had committed criminal and disciplinary acts of malfeasance in failing to oversee the four officials in their duty.

Sirote's aide attended the press conference at the NCCC office yesterday and was seen calling him to inform him of the decision.

A government official found guilty of malfeasance is subject up to 10 years imprisonment and/or a fine up to Bt20,000 in accordance with Article 157 of the Criminal Law. Article 154 stipulates that a malfeasant officer in charge of collection or examination of tax or other fares be subjected to five to 20 years or life imprisonment and/or a fine of Bt2,000-Bt40,000.