The second offence is when an adviser, through the course of tax planning or investment advice, enables an aggressive scheme.
Both can lead to civil and criminal charges.
“IFAs who are involved in any kind of tax planning, apart from the most mundane, would need to be concerned about the enabler penalties,” Quarmby told International Adviser. “For instance, many in the IFA industry have actively marketed or been involved in film schemes and other now discredited tax avoidance arrangements. In future IFAS should consider carefully whether it is worth the risk of participating in this market.
“As for failure to prevent, it is crucial that IFA firms put in place proper procedures as this is the only defence to a failure to prevent allegation.”
Failure to prevent
To be caught under failure to prevent takes three steps:
1. A taxpayer has committed criminal tax evasion under existing UK or foreign law although no actual conviction is necessary;
2. An associated person or relevant body criminally facilitated the tax evasion; and,
3. If an offence has been met at both stages then the relevant body becomes liable unless the statutory defence applies, where there are reasonable prevention procedures in place.
Apart from the reputational damage, a corporate found guilty can expect unlimited fines and confiscation orders.
To be an enabler of tax avoidance is where a person has entered into an abusive tax arrangement and a person incurs a defeat.
Penalties are equal to the total amount or value of all the relevant consideration received or receivable with a potential for naming and shaming by HM Revenue & Customs. Funds must be raised in two years.
An enabler is anyone including a designer of arrangements, managers who organise it, marketers who make the arrangement available or explains the advantages and anyone who enters into an arrangement which without them the tax advantage could not be achieved.