UK and International Tax news

HMRC Issues Condoc On New Corporate Offence Of Failure To Prevent Tax Evasion

Tuesday 26th April 2016

HMRC has recently issued a consultation document on draft legislation and guidance for the new corporate criminal offence of failure to prevent the criminal facilitation of tax evasion, as outlined in HMRC’s response document of 9 December 2015.

In the March 2015 Budget, the Government announced that it would introduce a new criminal offence to apply to corporations who failed to prevent their agents from criminally facilitating tax evasion. A public consultation ran from July to October 2015.

The consultation response document was published on 9 December 2015. The Government announced that it would legislate for the new offence and consult on draft legislation and guidance at the beginning of 2016.

The new corporate offence aims to overcome the difficulties in attributing criminal liability to corporations for the criminal acts of those who act on their behalf.  Whilst the latest consultation refers to the application of the new offence to “corporations”, the draft legislation refers to a “relevant body” to include bodies corporate and partnerships as legal persons to which the new offence will apply.

Attributing criminal liability to a corporation normally requires prosecutors to show that the most senior members of the corporation were involved in and aware of the illegal activity, typically those at the Board of Directors level. This has a number of impacts.

In large multinational organisations, decision making is often decentralised and may be taken at a level lower than that of the Board of Directors, with the effect that the corporation can be shielded from criminal liability. This also makes it harder to hold such organisations to account compared to a smaller organisation where decision making is centralised.

The existing law can act as an incentive for the most senior members of a corporation to turn a blind eye to the criminal acts of its representatives in order to shield the corporation from criminal liability. It can also act as a disincentive for internal reporting of suspected illegal activity to the most senior members of the corporation.

The latest consultation seeks views from interested parties on how the new corporate offence outlined in the HMRC response document of 9 December 2015 is best expressed in statute and guidance.

To allow stakeholders time to consider how the policies outlined in the response document could be reflected in legislation, the Government has published draft clauses within the response document.

Feedback from stakeholders during the consultation stressed the importance of guidance for the new offence and welcomed the opportunity to comment on the draft legislation and the draft guidance in tandem. The Government recognised that stakeholders may have comments on the new offence that are more relevant to the guidance than the legislation and stresses that the draft clauses and the draft guidance are considered together.

The offence as outlined in the consultation response document will have three stages:

Stage one: criminal tax evasion by a taxpayer, either a legal or natural person, under the existing criminal law, for example an offence of cheating the public revenue, or fraudulently evading the liability to pay VAT.

Stage two: criminal facilitation of this offence by a person acting on behalf of the corporation, whether by taking steps with a view to: being knowingly concerned in; or aiding, abetting, counselling, or procuring the tax evasion by the taxpayer.

Stage three: the corporation’s failure to take reasonable steps to prevent those who acted on its behalf from committing the criminal act outlined at stage two.

The consultation runs from 17 April to 10 July 2016.

For further details on the latest condoc, please contact Keith Rushen on 0207 486 2378.

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