My good friend, David Winch, has posted an authoritative update on the changes that practitioners should be considering following the admission to the statute books, of the Criminal Finances Act 2017.
The goal posted have well and truly shifted and firms will need to consider the tax advice given by their staff and principals with some care from now on. David states in his blog:
The Act creates, at sections 44 to 52, a new offence of failing to prevent the facilitation of tax offences. This new offence may be committed by an organisation such as a limited company or a partnership (but not by an individual). The essence of the offence is that where an individual has committed an offence which has facilitated a tax offence by another, then the organisation with which he is connected (typically his employer) may be prosecuted for its failure to prevent the individual committing his offence.
For example if an employee of a bank or a firm of accountants facilitates a tax offence by a customer or client then not only will that employee be liable to prosecution (as he is now) for his criminal conduct in facilitating the tax offence but the organisation will be liable to prosecution for this new offence. In this way the government intends to hold organisations to account for the criminal misconduct of their employees and other persons acting on their behalf.
Under existing law the organisation would only be liable to prosecution if the ‘directing mind’ of the organisation were engaged in criminal conduct. Because employees who commit tax evasion facilitation offences are typically not at the most senior level of the organisation which employs them the organisation itself is not currently at risk of prosecution. The Act changes that.
The new offence is modelled on the s7 Bribery Act 2010 offence of failing to prevent bribery.
As with the Bribery Act offence, guidance will be issued to assist organisations to set up appropriate procedures to prevent tax evasion facilitation offences by their employees and agents. Key principles are likely to include risk assessment, prevention procedures, due diligence, staff training, and monitoring and review.