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Criminal Finances Act 2017 – New Criminal Offence Requires Preventive Procedures

The UK Criminal Finances Act 2017 (the Act) recently introduced a new corporate offence of failure to prevent the facilitation of tax evasion. 

Under the new law, a corporate body or partnership may be criminally liable if it fails to take reasonable steps to prevent an “associated person” (which will include its employees) facilitating the commission of a tax evasion offence.

To Which Organisations Does the New Law Apply?

The scope of the new law is broad.  It applies to facilitation of both of the following:

  • UK tax evasion by a corporate body or partnership (wherever in the world that entity is incorporated or formed)

  • Foreign (i.e., non-UK) tax evasion by a corporate body or partnership either established or doing business in the United Kingdom

Why Is This Important to Employers?

Whilst the Act does not radically change the current law on what constitutes criminal tax evasion, it significantly increases the circumstances in which an organisation may be held liable.

This is due to the Act’s broad definition of “associated persons”, which is not limited to an organisation’s senior officers. It includes employees, agents and other persons performing services for or on behalf of the organisation.

What Is the Potential Liability?

Beyond reputational damage and business disruption, failure to take reasonable steps to prevent the facilitation of tax evasion by employees and other associated persons could expose an organisation, on prosecution, to a significant fine.

Moreover, liability for the offence is strict.  It is irrelevant whether the organisation knows that a tax evasion facilitation offence is taking place.

What Will Constitute Reasonable Procedures?

An organisation will have a complete defence to the new offence if it can show that it had in place reasonable procedures to prevent the facilitation of tax evasion by an associated person.

Similar to the defence of “adequate procedures” under UK anti-bribery legislation, this defence will ultimately be context specific and, if ever challenged, will require the organisation to demonstrate that it took all steps which it was “reasonable in all the circumstances to expect”.

Government guidance indicates that such reasonable procedures ought to be influenced by six guiding principles:

  • Risk assessment

  • Proportionality of risk-based prevention procedures

  • Top-level commitment

  • Due diligence

  • Communication (including training)

  • Monitoring and review

What Should Employers Be Doing Now?

To the extent that steps haven’t been taken already, organisations should put in place reasonable procedures now to prevent facilitation of tax evasion by employees and other associated persons.

From an employment perspective, this could include the introduction of a formal policy, communication from senior management and staff training.  

© 2017 McDermott Will & Emery

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About this Author

Katie Clark, McDermott WIll Emery Law Firm, Labor employment attorney
Partner

Katie Clark is a partner in the law firm of McDermott Will & Emery UK LLP, based in its London office.  Her practice focuses on contentious and non-contentious employment matters. 

Katie is recognised as a leader in her field in Chambers UK 2011.  She is described as a “recognised force for her advocacy and commercial employment advice”, Chambers UK 2010 and as “very knowledgeable, superbly responsive, and no-nonsense…” Legal 500 UK 2011.

Her clients include global corporations, financial institutions, FTSE 100 companies, manufacturing companies...

+44 20 7577 3492
Paul McGrath, Employment Law Attorney, McDermott Will Emery Law firm
Associate

Paul McGrath is an associate in the law firm of McDermott Will & Emery UK LLP, based in its London office. His practice covers all areas of contentious and non-contentious employment law in the UK.

44-20-7577-6914
Carlene Nicol, McDermott, Employment tribunal Lawyer, non-contentious employment matters attorney
Associate

Carlene Nicol advises a range of national and international clients from both the public and private sectors on all aspects of employment issues with a particular focus on both contentious and non-contentious employment matters. With regard to contentious matters, Carlene has experience in Tribunal and Employment Appeal Tribunal litigation including defending disability, race and sex discrimination, trade union detriment and breach of contract claims. In terms of non-contentious matters, she has experience advising on restructuring and acquisitions, senior hires and...

44-20-7570-1463