Is any Code of Practice included with or referred to in the letter?
The FIS team often deal with cases under either Code of Practice 8 or 9 (COP8/9), the latter being linked to the Contractual Disclosure Facility (CDF) concerning cases of suspected tax fraud. Whether or not anything is included with the initial letter will shape an advisor’s initial thinking about HMRC’s concerns and how best to handle the case from the outset.
How much data has been requested?
It may be that the letter is somewhat open-ended, referring to concerns about any and all taxes across the recipient’s personal and business affairs generally, without reference to a time limit. Careful consideration should be given to the extent of HMRC’s powers as well as exercising judgement on any aspects to challenge or comply with, perhaps voluntarily.
Is a formal information notice included with the letter?
HMRC often initially request data on an informal basis, meaning there is not necessarily a legal obligation for the taxpayer to provide the information requested. The request may also go beyond what could be requested in a formal notice as, unlike a formal notice, an informal one is not subject to the statutory safeguards and boundaries. If a formal notice is included, consider the type of notice. There are various different types of formal notice, the most common being first-party notices issued directly to the taxpayer and third-party notices asking the recipient to provide data about the tax position of another person. The distinction is important as there are different rules applicable to each different type of notice including underlying conditions which must be satisfied before any such notice can be validly issued.
Consider the justification given, if any, for HMRC’s enquiries.
Under the Litigation & Settlements Strategy HMRC ought to share the risks that they have identified. It should also be remembered that an overriding condition is that any data requested in a formal information notice must be ‘reasonably required’ for the purposes of checking the recipient’s (or someone else’s if it is a third-party notice) tax position.
Consider how many years the data requested relates to.
As already noted, it may be that the letter is somewhat open-ended without reference to a time limit. There are, however, strict time limits for HMRC to assess past taxes so if any data requested is more than four years old it may be worth questioning HMRC further given that HMRC cannot ordinarily assess tax periods longer ago than that, although there are various exceptions. If reference is made to periods more than six years previously, this suggests that HMRC believes that any irregularities found are more serious than simple human error or carelessness, they are potentially deliberate or fraudulent errors. In addition, there are further rules concerning requests for such old documents meaning that the notice itself may not be valid.
If appropriate, discuss COP9 and the CDF with the appointed specialist advisor whether or not the letter from FIS refers to it.
The CDF is a very good place to be if tax fraud needs to be rectified as it guarantees immunity from prosecution for that fraud. The CDF is a very thorough process and is therefore onerous and complex, but an experienced specialist will be able to guide you smoothly through it without too much interference from HMRC, eventually leading to a settlement covering the tax, interest and penalty thereby closing the whole matter once and for all without any criminal conviction.
Make a full disclosure.
As already noted, the CDF is a very good place to be in tax fraud cases but that is only true if a full and frank disclosure is made, with cards placed fully face up on the table. Anything less is self-defeating as it means the past is not fully closed and leaves the taxpayer open to prosecution for the issues not fully declared. Again, an experienced specialist will undertake a thorough examination of the relevant issues and will discuss any concerns or gaps identified that arise during that process as well as liaising closely with HMRC to make sure that all their concerns are properly and thoroughly addressed.
Having said all of the above, if there is genuinely nothing to disclose then it is not appropriate to try and shoehorn something into a disclosure position. It may be that HMRC’s initial concerns are misguided and are capable of explanation.
The FIS team does not undertake projects lightly and so any letter from them must be taken seriously. The opening letter can provide an experienced specialist with a lot of useful information about the nature of the challenge and the tools to advise on how to progress the case and protect the taxpayer as appropriate. Dealing with the FIS and HMRC’s powers is complex with many potential intricacies to consider and any case should be worked on with expert input from a specialist.
For more information, or to discuss your position, please get in touch with John Cassidy or your usual Crowe contact.
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