Author: Nicola Sharp
15 May 2019
6 min read
Nicola Sharp outlines what needs to be done to avoid the failure to prevent offence that was introduced by the Criminal Finances Act.
Under Part 3 of the Criminal Finances Act 2017, a company, partnership or other ‘legal person’ commits an offence if they fail to take reasonable steps to prevent an employee or associated person from facilitating tax evasion.
The offence relates to all organisations, regardless of where they are based, and covers UK tax evasion as well as the facilitation of tax evasion in other countries, providing there is a connection to the UK. Such a connection can mean the involvement of a UK legal person, foreign legal persons that have a place of business in the UK or foreign legal persons whose facilitation of tax evasion took place in the UK.
In order for facilitation of tax evasion to be a criminal act, a person must have deliberately and dishonestly helped another person evade tax. A company or partnership that fails to prevent this facilitation of tax evasion commits the corporate criminal offence. But if such help was given by accident, ignorance or negligence it is not an offence.
The offence places a duty on companies (and partnerships and other legal persons) to ensure that their methods of working ensure there is no potential for an employee or associate to help someone evade tax. There is no magic formula for ensuring this. But it is important to note that a company has a defence if it can demonstrate it had put in place reasonable procedures to prevent the criminal facilitation of tax evasion or that it was not reasonable to expect it to have such procedures.
What may constitute reasonable procedures could vary from company to company, depending on their size, nature and complexity. But HM Revenue and Customs (HMRC) has produced some advice on how to avoid being prosecuted for the offence.
A methodical approach to prevention will reduce the possibility of the offence being committed. It may also reduce the chances of a prosecution when the offence has been committed.
A company’s ability to mount a defence that it had reasonable procedures in place to prevent the offence being committed will depend on:
Whatever the company, it is important that these factors are considered when prevention procedures are being devised, introduced and maintained.
Each company is expected to have risk assessment procedures in place that mean it can recognise the risks it faces and introduce appropriate measures to manage them. No two companies are the same but if they are to be able to show they had reasonable procedures in place they will need to show that senior management was involved in risk assessment and that appropriate resources were devoted to it.
Any credible risk assessment needs to involve due diligence – which it outlined later on - and comprehensive documentation of the risk posed. It also has to incorporate methods of identifying new risks as they arise and any increase in existing ones – and appropriate ways of responding to these. Such risks can include internal issues such as a lack of staff training or knowledge, a risk-taking culture prompted by bonus payments and / or the provision of high-risk products and services or failures regarding financial controls or whistle-blowing procedures.
While identifying potential risks and introducing procedures to reduce them are key steps in preventing facilitation of tax evasion, they will only be of value if the preventative procedures introduced are tailored to the size and nature of the risk.
The procedures need to be reasonable given the risks faced and proportionate to them. While there may be some – albeit very few – circumstances where it may be unreasonable for a company to be expected to have prevention procedures in place, it will be extremely rare for it to be acceptable not to have even conducted a risk assessment.
The risks have to be assessed and a timescale devised for implementing, reviewing and amending procedures that result from this assessment. HMRC expects such procedures to evolve to reflect and manage any changes to the size and nature of the risk faced. How such procedures are communicated and enforced and who should be responsible for alerting the authorities to any criminal activity are issues that have to be addressed at the earliest possible stage.
To put it in simple terms, a company cannot simply go through the motions when implementing procedures. They have to be fit for purpose, appropriate for the risks that are faced and enforced and reviewed as a matter of priority.
The procedures introduced by a company will only be considered reasonable by HMRC if there is proof of a commitment to them from senior management. Senior figures within a company are expected to develop and promote a culture where it is unacceptable to indulge in any activity intended to facilitate tax evasion.
This has to be seen to be communicated throughout a company. Management can do this via a commitment to a zero-tolerance policy towards the criminal facilitation of tax evasion. This can include clear disciplinary procedures, a publicised policy of not recommending the services of others who do not have reasonable prevention procedures in place and promoting the reputational and business benefits of rejecting the provision of services to enable tax evasion.
The level of senior management involvement is expected to be relevant to the size of the company. Close personal involvement by senior figures in smaller organisations is expected while an overseeing role for them may be considered appropriate in a large or multinational corporate.
Any company that is serious about preventing tax evasion being carried out has to be carrying out due diligence in order to recognise the risk and the potential source and cause of that risk.
This requires a comprehensive approach to due diligence that looks at all aspects of a company’s work and all those involved in it; either as employees, representatives, trading partners or other third parties. In short, everyone who carries out or may carry out activities on behalf of the company has to be subject to thorough and ongoing checks in order to reduce the risk of tax evasion being facilitated.
It is important to note that prevention of this offence may not be something that is achieved by simply applying or altering existing due diligence procedures, as these may not be suitable for the challenge.
Whatever procedures are introduced in order to prevent the facilitation of tax evasion, it is expected that they will be publicised and communicated to everyone working for, on behalf or with a company. The onus is on the company to ensure that the procedures are fully understood at all levels of seniority and that training is implemented, where necessary, to ensure this.
Such communication should emphasise the company’s zero-tolerance of the offence and the possible consequences for anyone who is found to be involved in it. Extra emphasis may be placed on reinforcing this message in the highest risk areas of a company’s operation – both to those working for it and to trading partners.
While communication from the top down is vital it is equally important that communication can go up the chain of command. Devising an effective whistle-blowing procedure that enables anyone working for or with a company to report concerns of possible wrongdoing confidentially – and safe in the knowledge that they will be treated seriously – will help identify problems. Such a procedure will be of value as a deterrent to those who may consider facilitating tax evasion. It will also be viewed by HMRC as a genuine effort to prevent the Section 3 offence, as would any training initiated to ensure staff are aware of the risks they face.
No matter how well-devised and carefully introduced the prevention procedures, they have to be subject to regular review and, where necessary, alteration in order to remain relevant to the risk posed. The size and nature of the risks faced by a company can change over time. Its preventative measures have to reflect this.
This can only be done by effective monitoring of the risks. Such monitoring can be conducted by external experts hired for that purpose. It can also involve consulting with staff and partners to gain feedback, specific examinations of company data, documentation and accounts and even asking other companies in similar positions how they manage the risks.
A company can use any combination of these approaches. But it cannot afford to ignore the need to regularly assess the effectiveness of its procedures.
The offence of failure to prevent the facilitation of tax evasion is one that puts a huge onus on companies to ensure their approach to prevention is targeted, appropriate and effective. It can be seen by some in business as daunting and, if that is the case, legal advice should be sought in order to ensure those all-important reasonable procedures are introduced.
This article was also published on Lexology.com.
Nicola is known for her fraud, civil recovery, arbitration and business crime expertise, her experience of leading the largest financial disputes and multinational investigations and her skills in devising preventative measures and conducting internal investigations for corporates.