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Vol 23 No 9 Sept/Oct 2018

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Blackstone 2019
Lexis taking security
Lexis insolvency legislation
Archbold 2019 out now

Tax Advisers' Obligations and Liability

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ISBN13: 9781526506207
To be Published: April 2019
Publisher: Bloomsbury Professional
Country of Publication: UK
Format: Paperback
Price: £150.00



In the world of competing demands on the UK Exchequer and the ever increasing scrutiny of tax planning and investigations into possible tax evasion it is of fundamental importance for the tax adviser to understand and appreciate the scope of their obligations and potential liabilities.

Advisers must meet the standards required by their governing professional body, adhere to the requirements of the law both as to the efficacy of the tax advice given to a client, and also to ensure that it is not negligent advice. Moreover, the tax adviser must also be vigilant to ensure that their services are not being exploited for the purposes of tax evasion.

A business will be liable if an employee or other associated person criminally facilitates tax evasion whilst acting in that capacity for the business, even if the senior management of the business was not involved or aware of what was going on. An associate includes all employees and persons providing services to the business, such as an accountant or adviser .Under this legislation, advisers face the possibility of substantial financial penalties, reputational damage and possibly prison.

Other key areas to be covered include updates to the Promoters of Tax Avoidance Scheme (POTAS) legislation and the Disclosure of Tax Avoidance Scheme (DOTAS legislation; the impact of the Money Laundering Regulations 2017, and the various codes of conduct of the various professional bodies.

Key case law covered includes the following

  • Higgins & Ors v ERC Accountants & Business Advisers Ltd [2017] EWHC 2190 (Ch) (18 September 2017)
  • Halsall & Ors v Champion Consulting Ltd & Ors (Rev 1) [2017] EWHC 1079 (QB) (19 May 2017)
  • Barker v Baxendale Walker Solicitors (a firm) [2016] EWHC 664 (Ch)
  • Altus Group (UK) Limited v Baker Tilly Tax and Advisory Services LLP et ors [2015] EWHC 12 (Ch)
  • Mehjoo v Harben Barker [2014] EWCA Civ 358
  • Mehjoo v Harben Barker (a firm) & Anor [2013] EWHC 1669 (QB)
  • Matrix Securities Ltd v Theodore Goddard (a firm) and David Goldberg QC [1998] PNLR 280

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Subjects:
Taxation
Contents:
Introduction
Overview
Tax Planning v. Avoidance v. the GAAR: the current climate
Professional Standards and facilitation and promotion of tax avoidance
Tax evasion
Summary of recent developments

2. Regulatory Framework: an outline
Contract
Law of Negligence
Anti-money laundering
Criminal Finances Act 2007

3. Professional Conduct in Relation to Taxation (PCRT)
Professional Bodies and applicable Standards: ACCA, AAT, ATT, CIOT, STEP
integrity, objectivity, professional competence and due care, confidentiality and professional behaviour
Tax planning: the client specific standard
Tax planning: the lawful standard
Tax planning: the disclosure and transparency standard
Tax planning: (i) contrary to the clear intention of Parliament in enacting relevant legislation; and/or (ii) highly artificial or highly contrived arrangements
Solicitors Regulatory Authority
Bar Standards Board

4. Regulatory obligations
Disclosure of Tax Avoidance Schemes (DOTAS) / overview / hallmarks / who is a promoter? / who is an introducer? / Finance Act 2004
Disclosure of VAT Avoidance Schemes: Schedule 11A to the VAT Act 1994 and Schedule 2 to the Finance Act 2004
Promoters of Tax Avoidance Schemes (POTAS)
Monitoring notices

5. Liability under Contract
Engagement letter: scope and interpretation
Express and other implied terms (The Supply of Goods and Services Act 1982, s.13)
Breach of terms
Causation
Loss
Limitation

6. Liability for negligence
Duty of care
Concurrent duty of care in tort
Standard of care
Breach of duty
Failure to warn of specific risks
Causation: did the breach cause the loss? Did the claimants rely on the advice which was given?
Loss
Limitation

7. Defences
Contributory negligence
Are the claims statute barred? section 2 and section 14A of the Limitation Act
Is any breach excluded by terms of business? Unfair Contract Terms Act

8. Privilege: tax advice and disclosure
Scope: Three Rivers District Council v Governor of the Bank of England (No 6) [2004] 3 WLR 1274
Lawyers
Accountants: R (on the application of Prudential plc and another) v Special Commissioner of Income Tax

9. Criminal Investigations
Criminal investigation and prosecution
Search warrants and productions orders: Police and Criminal Evidence Act 1984
Role of the adviser
Dealing with a dawn raid and interviews

10. Tax Evasion Facilitation Offences and Anti-Money Laundering
failure to prevent the facilitation of evasion: Criminal Finances Act 2017
scope of offence: facilitation of UK tax evasion
scope of offence: facilitation of evasion of non-UK taxes
meaning of 'associated person'
Defence – reasonable prevention procedures: what are they?
HMRC guidance
Anti-Money Laundering