Offshore tax evasion: compliance and penalties – part 1

Sometimes it can be hard to keep up with the avalanche of government announcements on tax avoidance and evasion. In the first of a two part series, Jason Collins, a member of the CIOT’s management of taxes sub-committee and partner at Pinsent Mason, provides an overview of the rapidly changing tax compliance landscape for offshore evasion

1 January 2017 was a seminal date in the war against offshore tax evasion because it is the date on which financial accounts in existence in jurisdictions in the ‘late’ adopters of the Common Reporting Standard (CRS), will have to be reported, even if they are closed after this date.

Although the trigger dates were earlier for the Crown Dependencies and Overseas Territories (CDOTs) (1 July 2014) and early adopters of the CRS (1 January 2016), the late adopter countries are perhaps the most significant because they include the major financial centres of Switzerland, Hong Kong, Dubai and Singapore.

HMRC received the data from the CDOTs in September 2016 and has begun the process of matching that data to information it already holds in order to decide who to investigate. The data pot will be enhanced by the receipt of the CRS early adopter data in September this year and late adopter data in September 2018.

Enablers

The date of 1 January 2017 also brought the start of Finance Act 2016 penalties for enablers of someone else’s offshore tax evasion or careless non-compliance. Penalties can be up to 100 per cent of that other person’s tax liability.

It is worth noting here that the taxpayer will be entitled to mitigation of his or her own penalty if he or she provides information about any enabler.

Strict liability offence

HMRC is under pressure to prosecute more people for offshore tax evasion, and FA 2016 introduced a new ‘strict liability’ offence which may achieve this end.

The offence will apply if a UK taxpayer fails to notify HMRC of his or her chargeability to tax, fails to file a return or files an incorrect return in relation to income, gains or assets in a non-CRS country and the underpaid tax is more than £25,000 per tax year.

There will be no need for the prosecution to prove that the individual’s actions were dishonest but the taxpayer can put forward a ‘reasonable excuse’ defence. The maximum sanction is six months of imprisonment. We do not yet have a definite date, but it is expected this will apply from April 2017.

Corporates

As with the above, HMRC is also under pressure from the public to see more companies and partnerships prosecuted – in particular those who fail to prevent their staff and agents from criminally facilitating third party tax evasion. A new offence is being introduced in the Criminal Finances Bill and will be effective by September 2017 at the latest.

Liability is again ‘strict’, but it will be possible to advance a defence that reasonable procedures were in place to try to stop the misconduct (or that it was not reasonable in all the circumstances to expect there to be a procedure in place).

The offence is being introduced because under the current law a corporate will only be criminally liable if very senior management (usually board level) were involved or knew about the facilitation, meaning that it can be all too easy for senior management to let unscrupulous practices go on, provided they know nothing about them.

Tougher civil penalties

Despite bringing more prosecutions, most cases will continue to be dealt with by HMRC levying financial penalties rather than seeking a criminal conviction.

The current maximum penalties for offshore evasion depend upon the extent that the UK has exchange of information arrangements with the jurisdiction connected to the non-compliance, with a maximum penalty of 200% of the tax for the most opaque regimes.

The standard penalty payable can be increased by up to 50% where there has been a deliberate attempt to move assets in order to avoid exchange of information regimes (Sch 21, FA 2015).

In addition, a new ‘asset-based’ penalty is being introduced (Sch 22 FA 2016) for the most serious cases of evasion with an offshore connection. It is levied in addition to the standard penalties for deliberate behaviour. The asset-based penalty starts at the lower of 10% of the value of the asset and 10 times the potential lost revenue related to the asset and is subject to mitigation.

It is not yet known when this penalty will come into force, but it is likely to be sometime in 2017.

Disclosure facilities and ‘Requirement to Correct’

The Liechtenstein Disclosure Facility (LDF), which despite its name could be used for irregularities in other jurisdictions, has been withdrawn and replaced with the much less generous Worldwide Disclosure Facility (WDF).

The WDF offers no tax amnesty, penalty reduction or guarantee of non-prosecution and therefore provides little incentive for the hard core who have resisted the numerous previous settlement initiatives to regularise their position. The WDF requires the taxpayer to pay the tax, interest and a self-assessed reckoning of the penalties which apply.

Linked to this, Finance Bill 2017 will include new measures applying to a person with any undeclared tax relating to offshore matters as at 5 April 2017. The law will impose a special ‘new’ statutory requirement to correct the issue between 6 April 2017 and 30 September 2018. The issue is treated as corrected if the taxpayer takes certain steps, including formally bringing it to the attention of HMRC under the WDF, before the deadline.

A failure to correct by the deadline will lead to two things. First, the time limit applying to HMRC’s powers to assess will be extended so that HMRC is given a further four years beyond the usual timeframes in which to discover and collect the under-declared tax.

Second, the old penalty regime will fall away and a new super penalty will be applied. The penalty is between 100 per cent and 200 per cent of the potential lost revenue (depending on the levels of cooperation). The underlying conduct giving rise to the non-compliance is irrelevant. However, there is a ‘reasonable excuse’ defence and provision for reduction of the penalty in special circumstances.

This super penalty can be imposed in addition to the asset–based penalty mentioned above. It is also subject to an increase of up to 50 per cent under Sch 21 FA 1015 if HMRC can show that assets or funds have been moved in a deliberate attempt to avoid exchange of information (see above).

Obligation to write to clients

Advisers who have provided tax advice to UK residents in relation to offshore accounts, assets and sources of income and financial institutions who have provided offshore accounts are required to send a letter to their clients enclosing a HMRC leaflet and reminding them of their obligation to disclose offshore income and gains. It will apply in respect of advice provided in the year to 30 September 2016 and there are exclusions.

A useful exclusion for advisers covers the situation where all the adviser has done is prepare tax returns disclosing offshore income. Letters need to be sent by 31 August 2017 but advisers need to start working out which clients they need to contact, if they have not already done so.

Requirement to notify offshore structures

HMRC is consulting until 27 February 2017 on a proposed new legal requirement for intermediaries (both within and outside the UK) creating or promoting certain complex offshore financial arrangements to notify HMRC of the details and provide a list of clients using them.

The measure aims to target arrangements which could easily be used for tax evasion purposes. It is proposed that the requirement should apply to arrangements in existence at 31 December 2016, rather than just new arrangements entered into after the new measure comes into force, in order to tie in with the start of CRS.