Tax abusers want their pound of flesh – in court

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As the FT reports this morning:

Lawyers are scrambling to file compensation claims against advisers who sold tax-saving schemes that have backfired to leave an estimated £5bn bill for individuals.

It would seem that some of those who have been sold abusive tax schemes that may not work are not happy. And when the rich aren't happy it's the writs that fly.

I have to say that I suspect those issuing these writs may have little more hope of them succeeding than their dodgy tax schemes did, because the lawyers and advisers involved in these arrangements almost certainly covered their backsides rather well, but that's not the point. There are three points to this.

The first is that there has been mis-selling, even if backed by learned counsel's opinion.

The second is that there were advisers willing to do that mis-selling.

The third is that at least some of those mis-sold too might have genuinely believed they were not taking any real risk.

So, what to do about it. Mazars would have us believe that a 'trusted tax adviser' scheme should be enough to protect the public from such schemes. I do not agree, not least because compliance with the rules of existing professional bodies is clearly insufficient to prevent tax abuse (as I consider exists) occurring.

In that case any case scheme has to be tougher. Back in 2007 I wrote a Code of Conduct for Taxation. It read as follows:

A Code of Conduct for Taxation

Objective

This Code of Conduct relates to the payment of taxes due to a State or other appropriate authority designated by it.

Scope

This Code applies to:

  1. Governments and their agencies in their role as tax legislators, assessors and collectors;
  2. Taxpayers, whether individuals, corporate bodies or otherwise;
  3. Tax agents, whether they are undertaking tax planning or assisting with tax compliance.

Application

It is intended that this Code be voluntarily adopted by States and should be used to guide the conduct of taxpayers and their agents who choose to comply with it whether or not they reside in a State which has adopted the Code.

The Code

The Code is divided under six sections, each of which includes three statements of principle.

1. Government

a. The intention of legislation is clear and a General Anti-Avoidance Principle (‚ÄòGantip’) is in use;

b. No incentives are offered to encourage the artificial relocation of international or interstate transactions;

c. Full support is given to other countries and taxation authorities to assist the collection of tax due to them.

2. Accounting

a. Transparent recording of the structure of all taxable entities is available on public record;

b. The accounts of all material entities are available on public record;

c. Taxable transactions are recorded where their economic benefit can be best determined to arise.

3. Planning

a. Tax planning seeks to comply with the spirit as well as the letter of the law;

b. Tax planning seeks to reflect the economic substance of the transactions undertaken;

c. No steps are put into a transaction solely or mainly to secure a tax advantage.

4. Reporting

a. Tax planning will be consistently disclosed to all tax authorities affected by it;

b. Data on a transaction will be consistently reported to all tax authorities affected by it;

c. Taxation reporting will reflect the whole economic substance and not just the form of transactions.

5. Management

a. Taxpayers shall not suffer discrimination for reason of their race, ethnicity, nationality, national origin, gender, sexual orientation, disability, legal structure or taxation residence; and nor shall discrimination occur for reason of income, age, marital or family status unless social policy shall suggest it appropriate.

b. All parties shall act in good faith at all times with regard to the management of taxation liabilities;

c. Taxpayers will settle all obligations due by them at the time they are due for payment.

6. Accountability

a. Governments shall publish budgets setting out their expenditure plans in advance of them being incurred, and they shall require parliamentary approval;

b. Governments shall account on a regular and timely basis for the taxation revenues it has raised:

c. Governments shall account for the expenditure of funds under its command on a regular and timely basis.

Enforcement

States seeking to comply with the Code will voluntarily submit themselves to annual appraisal of their Conduct. These appraisals will in turn be reviewed by a committee of independent experts appointed by participating States. Differences of opinion will be resolved by binding arbitration.

Any taxpayer or agent wishing to comply with the Code may do so. A State should presume that a person professing compliance with the Code has done so when dealing with any tax return they submit. In consequence the administrative burdens imposed upon that person should be reduced. In the event of evidence of non-compliance being found any consequential penalty imposed should be doubled.

Note that this Code does not just cover advisers: HMRC has to play its part too as do taxpayers themselves.

The time to revisit such a Code that requires real commitment over and above the norm so that taxpayers know they are dealing with honest firms would seem to have arrived.

The report that accompanied the Code is here.