Companies should prepare now for new UK offences of failing to prevent the facilitation of tax evasion

The UK government first announced its intention to introduce a new corporate offence of failing to prevent tax evasion (FTP) in spring 2015. Since that time, the government has held two public consultations. The offence is being introduced as part of the Criminal Finances Bill 2016-2017, which is currently progressing through the UK parliament.

All businesses should be taking action now to ensure that they are aware of and have control over how their employees, agents or service providers are operating to reduce the risk of exposure to the FTP offences.

Aside from the possibility of incurring a heavy fine, a successful prosecution under either of the new FTP offences could give rise to serious reputational damage for an organisation and is not something that businesses can afford to overlook.

The offence

The legislation creates two new offences. The first offence will apply to all businesses, wherever located, in respect of the facilitation of UK tax evasion. The second offence will apply to businesses with a UK connection in respect of the facilitation of non-UK tax evasion.

The FTP offences will apply to both companies and partnerships. They will effectively make a business vicariously liable for the criminal acts of its employees and other persons 'associated' with it, even if the senior management of the business was not involved or aware of what was going on.

There are two stages for the new corporate offences to apply:

• criminal tax evasion (and not tax avoidance) must have taken place; and
• a person/entity who is associated with the business must have criminally facilitated the tax evasion whilst performing services for that business.

'Associated persons' are employees, agents and other persons who perform services for or on behalf of the business, such as contractors, suppliers, agents and intermediaries.

For either of the offences to apply, the employee or associated person must have criminally facilitated the tax evasion, in its capacity as an employee or associated person, providing services to the business. A business cannot be criminally liable for failing to prevent the facilitation of tax evasion if the facilitator was acting in a personal capacity.

A defence of reasonable prevention procedures

A business will have a defence if it can prove that it had put in place reasonable prevention procedures to prevent the facilitation of tax evasion taking place, or that it was not reasonable in the circumstances to expect there to be procedures in place. HMRC has published draft guidance on the offences, in which it explains that there are six guiding principles that underpin the defence of having reasonable prevention procedures:

• risk assessment;

• proportionality of risk-based prevention procedures;

• top level commitment;

• due diligence;

• communication, including training; and

• monitoring and review.

A business will have to undertake a risk assessment to identify the risks of facilitation of tax evasion within the organisation and the potential gaps in the existing control environment. The risk assessment should be documented so that it can provide an audit trail to support any policy decisions regarding the implementation of new procedures to reduce the risk of exposure to the FTP offences.

It is expected that following a risk assessment most businesses will have to introduce changes to ensure that they have robust procedures in place to prevent their employees, service providers, agents, suppliers and customers from engaging in or facilitating tax evasion.

It will be important to secure top level commitment from a company’s board and/or senior executives about the risks of exposure to the FTP offences and the need for the business to respond to the new offences. Businesses will also need to ensure that sufficient training on tax evasion and the FTP offences is provided to all staff.

Territoriality

There are two separate offences which apply where UK and non-UK tax respectively is evaded.

In relation to UK tax, the offence will apply to any company or partnership, wherever it is formed or operates.

Where non-UK tax is evaded a business will commit an offence if the facilitation involves a UK company or partnership, any company or partnership with a place of business in the UK, including a branch, or if any part of the facilitation takes place in the UK. In addition, the foreign tax evasion and facilitation must amount to an offence in the local jurisdiction and involve conduct which a UK court would consider to be dishonest.

Distinguishing tax avoidance and evasion

As noted above, the FTP offences will only apply when there has been fraudulent tax evasion. Fraudulent tax evasion is a crime and involves dishonest behaviour. A person behaves dishonestly if they know, or turn a 'blind eye' to whether, they have a liability to pay tax but decide not to pay or declare it. Dishonest behaviour may involve a person simply deciding not to declare money they make. It may involve someone deliberately trying to hide the source of money, or even intentionally misrepresenting where money came from. In most countries, such dishonest tax evasion will be considered illegal and therefore a crime.

Fraudulent tax evasion does not arise where a person makes a mistake or is careless. It also does not arise where a person actively seeks to avoid tax. A person's attempts to avoid tax may involve using complicated and artificial structures to exploit gaps in the rules of the tax system. Tax avoidance will usually involve arrangements to move assets from one place to another to secure a better tax treatment. Tax authorities may not agree that what has been done is legally effective and may challenge the taxpayer.

Even if the tax authority successfully challenges a tax avoidance arrangement and the taxpayer is required to pay additional tax, the taxpayer will not have acted dishonestly if he held a reasonable belief that the tax was not due when he entered into the arrangement, even though he may have acknowledged that he may be proved wrong. Tax avoidance would only become evasion if the taxpayer dishonestly withheld or misrepresented information to try to make the planning appear effective when it is not in fact effective.

In relation to the FTP offences, the facilitator must also have a criminal intent and thus be an ‘accomplice’. At its simplest, this will occur where the facilitator knows that he is helping another person to carry out a fraud. Unwitting facilitation of tax evasion is not enough. Nor would knowing facilitation of tax avoidance be enough.

Jason Collins and Penny Simmons are tax experts at Pinsent Masons, the law firm behind Out-law.com