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HMRC and the Advertising Standards Authority (“ASA”) published details of their new ‘tag-team’ pairing. This duo is now ripped, fake tanned, Lycra-ed up and ready to wrestle with ‘tax arrangement schemes’.
Under the proposals, the ASA will enforce the content of scheme promoters ensuring that:
It should be noted that “From 31 January 2021 [they] will start targeted monitoring and enforcement“
HMRC and ASA’s earlier partnership
Of course, HMRC and the ASA have worked together before.
We mentioned three cases in our ‘Ten Weapons of Tax (Avoidance) Destruction‘ back in June 2018 how HMRC had found itself a foot soldier in the Advertising Standards Authority (ASA).
To our knowledge, there have been three pertinent interventions by the ASA:
The use of the ASA as tag team partner is interesting for several reasons.
Firstly, ASA adjudications are of interest to the media. The Authority, in other words, cannot only order the withdrawal of offending ads but save HMRC the trouble of spreading the news and scaring off copycats.
Secondly, being able to ‘out’ organisations facilitating tax avoidance is something which HMRC has greater difficulty in doing – absent any naming and shaming provisions. However, merely citing an ASA missive mentioning the relevant firm allows HMRC to escape processes which might be much longer and may even involve multiple court hearings.
The first requirement is that the promoter must not “make any claims – direct or implied – that are likely to mislead customers”.
This would include not using:
The second requirement is that the website must make clear the risks of entering in to the relevant scheme. It is unclear as to whether this particular part only applies to “schemes under HMRC challenge” or not. Clearly, it would be good practice to include this for any such scheme – whether under challenge or not.
The ASA will look to see that that any scheme contains information about the tax implications and risks of entering into the arrangement. A non-exhaustive list, includes:
This information needs to be presented with equal prominence and be clearly signposted from the home page.
The ASA advised that the promoter should lay out on the website “a clear and detailed explanation of how the arrangement works”.
Sanctions under the ASA
Clearly, the success of this duo will depend on the power of its sanctions. Does this leave the new tag-team looking more like Bill and Ben than the Legion of Doom?
Simply put, it does not appear that the ASA has power to issue direct financial sanctions.
However, it does have other powers.
We have mentioned the ability for the ASA to release decisions in to the public domain much faster than HMRC can usually do under current law.
Indeed, the ASA states that “One of our most persuasive sanctions is bad publicity”. However, this only really works in an industry which relies on goodwill and reputation. I don’t believe this is the case for the contractor loan industry. In fact, I imagine a brand is probably one of the last things that they want – instead using new entities for a short period of time.
The ASA can withdraw so-called ‘trading privileges’ from firms. For example, it can ask Royal Mail to withdraw its Royal Mail bulk mail discount. In the age of email and e-signatures, I will perhaps leave you to conclude on the powers of disruption here.
One area which could have some success is the ASA’s ability to petition internet search engines to have paid ads removed where they link to a non-compliant marketer’s website.
Of course, where one is operating outside of these guidelines, then it might have knock on implications in terms of defending any claims for misrepresentation or negligence. However, I will leave this to someone better placed to comment.
The above applies to any promoter who is providing these arrangements to UK individuals and businesses. As such, the rule would apply to an overseas promoter.
As HMRC state in a recent report, 98% of all tax avoidance is now in the contractor loan / disguised remuneration sphere. As such, this new advertisement-based assault is very much targeted at the online contractor umbrella sites that are involved in this type of scheme.
This is perhaps an interesting development and is perhaps designed to shows that HMRC is taking on board a public desire for promoters to be tackled. This follows the uproar surrounding the 2019 loan charge.
However, as it stands, it is difficult to imagine that this will have much impact on this market without any serious financial or practical sanctions accompanying them.
Time will tell whether this new announcement will be quite the Royal Rumble that the announcement seems to suggest.
Full details of the ASA and HMRC initiative can be found here.
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