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New measures aimed at those who design, facilitate and promote tax avoidance arrangements
On 17 August 2016, HM Revenue & Customs (HMRC) published the latest consultation document setting out the Government’s proposals for further measures to tackle tax avoidance.
What is it about?
In this latest consultation document, the proposed measures are not aimed at the taxpayer who may have entered into a scheme but instead target those who design, facilitate and promote tax avoidance arrangements. The Government is proposing that such people, referred to as ‘enablers’, would be subject to penalties where a tax avoidance scheme they were involved with has been defeated.
The idea behind these proposals is to discourage the supply of tax avoidance arrangements by stopping them at source. These proposals are the latest in a long line of measures to tackle tax avoidance: the first indication that promoters were in the firing line for penalties was in the March 2015 consultation document, Tackling tax evasion and avoidance, where para 3.31 included the following statement:
‘the government will consider whether it should introduce new surcharges or penalties for all avoiders. It should not be worthwhile to seek out and pay for an avoidance scheme and the advice on its use in an attempt to pay less tax than is due. The government will explore how to ensure promoters and users feel the full impact of their scheme being defeated in the courts.’
Who is being targeted?
The Government’s aim is to stop promoters trying to sell tax avoidance schemes by applying a penalty on them when those schemes are defeated. However, it is proposed that the target of the measure is wider than just those who might be usually considered as promoters, ie. those who create, design and promote a tax avoidance scheme. The proposed target of the measure is ‘enablers’ of tax avoidance arrangements, and potentially will include:
‘anyone in the supply chain who benefits from an end user implementing tax avoidance arrangements and without whom the arrangements as designed could not be implemented.’
This is clearly a much wider group than a typical promoter, although in order to apply, a person must benefit from implementing the arrangement. Para 2.9 states that it will therefore include:
An enabler would include a tax adviser advising a client to implement a tax avoidance arrangement or scheme. It would also include a tax adviser who received, for example, a commission for introducing a client who entered into a tax avoidance scheme. It would appear not to include an adviser who did no more than suggest his client went to speak to someone who promoted tax avoidance schemes, although the document goes on to suggest that such a person might be caught if subsequently they did not make proper disclosure of the scheme.
This wide definition means that in respect of any one tax avoidance scheme and individual taxpayer, there could be multiple enablers.
What is a defeated scheme?
A penalty could only be applied if a particular scheme had been defeated. It is proposed that for these purposes, a defeat will follow the new rules currently in the Finance Bill 2016 aimed at strengthening the existing Promoters of Tax Avoidance (POTAS) rules.
A relevant defeat can arise in respect of any one (or more) of the following situations:
This definition is likely to cover most tax avoidance schemes and arrangements. The proposal highlights the increasing importance of the GAAR in UK tax legislation. It follows on from the proposed new 60% penalty on taxpayers (also included in the Finance Bill 2016) if it is subsequently found that any scheme or arrangement was counteracted by the GAAR.
A relevant defeat will arise on a final determination by a tribunal or court. However, it will also apply if the taxpayer and HMRC agree that the arrangements do not work. The relevant defeat would be the trigger for potential penalties on an enabler regardless of what penalties (if any) are levied on the taxpayer who used the scheme. This trigger may have the unfortunate effect of discouraging the settlement of tax avoidance cases.
What are the proposed penalties?
The paper invites views on what level of penalties might be applied, how they might be calculated and whether they might be subject to a cap. Suggested approaches are 1) to base the penalty on the benefit to the enabler, or 2) to base it on the amount of tax sought to be avoided by the taxpayers who were helped by the enabler. Under the latter approach, where a tax avoidance scheme was promoted through various enablers, the actual level of penalty on each enabler would depend upon the number of taxpayers they helped.
It is proposed that any penalty rules would follow the existing penalty rules for careless behaviour set out in Sch 24 of the FA 2007, with potential mitigation of the penalty depending upon the nature, timing and quality of any disclosures made by the enabler about their enabling of the defeated scheme.
It is proposed that the safeguards will include a number of exemptions (presumably with suitable modifications) based on the existing DOTAS tests and which will include:
How long is the consultation period?
The consultation runs from 17 August 2016 to 12 October 2016. It looks likely that any draft legislation would be published and included as part of the Finance Bill 2017.
ICAEW supports reasonable measures by the Government to tackle tax avoidance. The actions of a small minority in promoting what are often highly dubious tax avoidance schemes are a matter of public concern and it is reasonable for the Government to take action against those who promote them.
It is clearly important that any such measures are properly targeted and do not catch the vast majority of reputable firms giving ordinary tax advice. It has been a matter of concern to ICAEW that many promoters appear to operate outside of any professional rules or oversight. As a professional body, ICAEW does not expect its members to be involved in the creation, facilitation and promotion of aggressive tax avoidance schemes. This expectation on members will be enshrined in the forthcoming update of the Professional Code of Conduct in relation to Taxation (the PCRT) to which ICAEW is a signatory. We would therefore not normally expect our members to be the target of these rules.
However, the potentially wide definition of enabler and what arrangements might be caught will present problems for members and could see them potentially caught by these rules. For example, could a member firm be an enabler where it acts as a tax agent and submits a return for a taxpayer, which includes a tax avoidance scheme, which the member did not advise on? While it is clearly not the intention that they are caught, it appears that they could be if HMRC thought that insufficient disclosure was made on the return.
More generally, the UK tax code is extremely long, is highly complicated and is often uncertain in how it applies, the GAAR test being a case in point, all of which will mean that some tax planning by members could fall foul of these rules. It will therefore be vital to ensure that these rules are properly targeted and are reasonable and proportionate. HMRC will need to work with the professional bodies to ensure that, in addition, there are established procedures and guidance to help reputable advisers ensure they discharge their legal and professional duties to their clients (as set out in the PCRT for example), but at the same time do not get caught up within these provisions.
Will these measures drive out of the market those who promote aggressive tax schemes? It ought to drive out UK based promoters and should help to make lawyers think twice before giving an opinion which is used to help market a tax planning scheme. But there is a danger that it may also drive the UK tax avoidance industry even further offshore. There is also a danger that these measures could have unintended consequences. For example, it may force up PII premiums for the giving of any tax advice, potentially pricing out ordinary taxpayers from receiving proper advice and thereby damaging overall compliance.
My concern about the inclusion of the TAAR within these rules is that it could affect simple liquidations. These liquidations are now subject to a TAAR rule, but we have no clear HMRC guidance yet on when the rule will be invoked.
There will inevitably be borderline cases, even after further HMRC guidance, where accountants will form one view and the Revenue will argue the TAAR applies. This is not aggressive planning, but can apply to simple business liquidations, so we need confirmation or protection to ensure that penalties do not apply in this instance.
I write regarding the above named document. Having read through this I have no problem with the principles behind this and it’s application going forward. I think it is too widely drawn, goes too far and needs to be clarified somewhat. However my main point is that there is nothing in this document which relates to timing of when these penalties will be incurred. HMRC refer to failed schemes/planning. It does not detail whether this applies to schemes/planning which fail say tomorrow but were entered into 10 years ago, or to future schemes/planning which are entered into at a later date. Surely this must relate to all schemes entered into from a date to be decided in the future. Whether this is budget day 2017 or not. The institute should be acting in the best interest of its members to ensure that we are not subject to fines and penalties for actions that were taken say 10 years ago at which time such sanctions did not exist. I urge you in the strongest possible terms, to ensure that this only applies to schemes entered into in the future, and to make the strongest possible representations to HMRC regarding this. We do not want to see retrospective tax legislation creeping in as this completely undermines all principles of tax planning.