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Tax experts call for new
penalties to target deliberate promotion of avoidance rather than commercial
advice
Tax experts are warning that Government proposals to penalise
'enablers' of
Tax avoidance schemes are too widely
drawn and could result in some taxpayers and businesses being unable to get
expert advice on complicated and often unclear areas.
The Chartered Institute of Taxation (CIOT) is concerned that this could impact
on, among other matters, investment into the UK. The CIOT said the penalties
should be better targeted at those who deliberately seek to profit from Tax avoidance.
HMRC is proposing a significant new penalty for those who 'enable'
Tax avoidance
and profit from doing so, and also a change to the existing penalty legislation
which applies to those who use avoidance which is exposed and defeated by the
Tax Authority.
The CIOT fears the proposals and definition of enablers is so
widely drawn that it will catch many ordinary business services, for example
company formation agents, just because some avoidance schemes rely on setting up
companies.
It could also penalise advisers who give perfectly reasonable and legitimate
advice to clients, including on inward investment into the UK. Many reputable
advisers may be deterred from advising on complex matters on the grounds they
may be seen as 'enabling avoidance' and this would severely tarnish their
reputation, irrespective of penalties.
Assuming the proposal is properly targeted, the penalties need to be large
enough to deter the behaviour the Government is seeking to stop, but should not
topple over into retribution; in a democratic society, sanctions need to be
proportionate and measured, otherwise the legal system itself can be brought
into disrepute.
The CIOT has welcomed HMRC's broad consultation on the changes and has set out
its views in its response to the Government's 'Strengthening Tax Avoidance
Sanctions and Deterrents' discussion paper.
John Cullinane, CIOT's Tax Policy Director, said:- "The Government needs
to be careful that in its effort to wipe out avoidance schemes it does not
prevent taxpayers from getting access to honest, impartial advice on the law. If
the Government wants to incentivise good behaviour and penalise bad, as we think
it should, the proposals should target the deliberate behaviour of the small
persistent minority who devise and market avoidance schemes. It should not
interfere with the right of taxpayers to obtain full and rounded advice on
complex and often unclear areas of law. It could be calamitous for businesses
and other taxpayers if Tax advisers (or their insurers) feel too anxious about
the new sanctions to help them sensibly plan their Tax affairs within the law
and avoid these taxpayers laying themselves open to large, unintended Tax bills.
It is vital to our economy that the proposals are properly focussed, otherwise
they risk making the UK, a much less attractive place for commercial
transactions. If the proposals catch the services needed by inward investors; as
well as existing taxpayers; ranging from company incorporation to advice on
highly complex legislation, this would be a real deterrent to investing in the
UK. Given that the UK is the European base for many investments, this would be
very damaging to the UK economy. We recognise that there are limited financial
penalties at present for those who devise and actively market Tax avoidance
schemes but the tax-geared penalty being proposed is draconian. It should be
related to the fees or commission received by the enabler. Anything else would
be disproportionate."
The Institute has recommended in its response that the term 'enabler'
should be defined in terms of those who devise and play an active role in the
promotion of Tax avoidance schemes by requiring a stronger and more positive
link between the financial benefits sought and the Tax avoidance.
The Tax experts suggest that there should be a defence for professional advisers who are
members of a regulated body or a body with professional rules that address the
issue of Tax avoidance.
The Institute has also recommended to the Government that any final proposal
should apply to enabling that takes place only after the date that it comes into
force.
John Cullinane said:- "We look forward to continuing to work with HMRC to
produce a workable outcome." So
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