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Internal investigation on suspicion of failure to prevent tax evasion—checklist

Internal investigation on suspicion of failure to prevent tax evasion—checklist This Checklist explains the issues which should be considered when advising on and undertaking an internal investigation into whether the corporate criminal offence of failure to prevent the criminal facilitation of tax evasion has occurred. It should be read in conjunction with Practice Notes: Failure to prevent the criminal facilitation of tax evasion—the offences and Self-reporting corporate offences as well as the Failure to prevent the facilitation of tax evasion toolkit. Initial considerations Oversight The top-level management of an organisation should be committed to preventing persons acting in the capacity of a person associated with it from engaging in criminal facilitation of tax evasion. They should foster a culture within the organisation in which tax evasion facilitation is never acceptable. Consider: • has the company appointed an officer of sufficient seniority responsible for compliance and oversight of the company’s risk assessment, and policies and procedures in respect of preventing the facilitation of tax evasion? Internal reporting/whistleblowing An important aspect of...

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Criminal act or omission

Generally, for a person to be found guilty of a criminal offence, it must be shown that they:•acted in a particular way which is prohibited, or•failed to act in a particular way (omission), or•brought about a state of affairs•and had the required mental element or mens rea at the time of the carrying out of the criminal actFor information on the required mental element, see: State of mind—overview.However, some offences, mostly statutory based, create strict liability where it is not necessary for the prosecution to prove any mental element or fault. See Practice Note: Strict liability.Actus reusThe criminal conduct or criminal act of an offence is also known as the actus reus and this behavioural element is the essential characteristic of any offence. Some offences require that the conduct cause a particular outcome while others simply require that the conduct take place and the consequent result of the conduct is immaterial.Every crime has specified elements, prescribed by the common law or by the statutory definition of the offence, which together make up its actus...

Tax evasion facilitation case studies—law firms

Tax evasion facilitation case studies—law firms This Practice Note summarises case studies and Q&As provided by the Law Society in its Criminal Finances Act 2017 guidance in relation to the offence of failing to prevent the facilitation of tax evasion. It is intended for use by law firms. The Law Society’s Criminal Finances Act 2017 guidance was approved by the chancellor on 21 November 2018 but this approval does not extend to the questions and scenarios that accompany the guidance, which are summarised in this Practice Note. The failure-to-prevent facilitation of tax evasion offences There are two potential offences under the Criminal Finances Act 2017 (CFA 2017), depending on whether the tax evaded is owed in the UK or in a foreign country. Each offence has three core stages, all of which must exist for criminal liability to arise: For more guidance, see Practice Note: Failure to prevent facilitation of tax evasion—compliance issues—The offences. There is only one defence, ie when the tax evasion facilitation offence was...

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Policy—regulatory references

Policy—regulatory references 1 Introduction 1.1 The Financial Conduct Authority (FCA) and the Prudential Regulation authority (PRA) (together the Regulators) require firms that are authorised by the Regulators (and subject to the Senior Managers and Certification Regime (SM&CR)) to request regulatory references if they are considering:. 1.1.1 permitting or appointing someone to perform a senior management function; 1.1.2 issuing a certificate under the certification regime; and/or 1.1.3 appointing a non-executive board director. 1.2 These regulatory references are designed to assist prospective employers to assess whether an individual applying for an applicable regulated function is fit and proper to hold that role. 1.3 To enable a prospective employer to assess the fitness and propriety of a candidate for a regulated function, organisations that fall within the SM&CR must provide upon request a regulatory reference that covers the individual for the preceding six years (and, in certain circumstances, longer). It is essential that we comply with our regulatory obligations in obtaining and in responding to such requests, as the failure to...

Tax evasion facilitation staff FAQs and case studies—law firms

Tax evasion facilitation staff FAQs and case studies—law firms We run our business[es] with integrity. All of us must work together to ensure our business[es] remain[s] untainted by tax evasion and tax evasion facilitation. These FAQs are based on guidance from the Law Society and are designed to help you achieve [insert organisation’s name]’s business goals in a way that is consistent with our commitment to counter the facilitation of tax evasion. This document addresses some common questions and scenarios, but if you are ever unsure about a matter, transaction or situation, check with [insert contact name or title]. 1 FAQs 1.1 If a client engages the firm on a matter involving a foreign jurisdiction and our retainer does not include advising on associated foreign tax issues, what obligation do we have to consider foreign tax matters? The firm can only be liable if there is criminal facilitation of tax evasion by an associated person, so there is no requirement on us to ensure a client takes foreign...

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Can a claimant make a claim for personal injury, if they have been involved in a road traffic accident in a vehicle moments after they stole the vehicle?

Can a claimant make a claim for personal injury, if they have been involved in a road traffic accident in a vehicle moments after they stole the vehicle? In answering this Q&A, we have assumed that the claimant was driving the stolen vehicle and the traffic accident involved a third party. In a claim for personal injury in a road traffic accident where the claimant has been involved in criminal activity, the defence of illegality (often referred to as ex turpi causa) may be available. Practice Note: Defences in road traffic accidents explains that the principle is that if the claim is so closely connected or inextricably bound up with the claimant's own criminal or illegal conduct that the court cannot permit them to recover without appearing to condone such behaviour, it will not succeed. Illegality (ex turpi causa) In order to raise the defence of illegality, the conduct must be serious and it must be relevant to the breach of duty. Even if a claimant...

A final decree of nullity has been granted in respect of a bigamous marriage where one party knew that they were already married and the other party did not. The party without knowledge of the bigamy has made an application for financial orders. In such circumstances, would the Rampal v Rampal (No 2) and Whiston v Whiston line of authorities preclude the respondent from benefiting as a result of the applicant's financial application?

A final decree of nullity has been granted in respect of a bigamous marriage where one party knew that they were already married and the other party did not. The party without knowledge of the bigamy has made an application for financial orders. In such circumstances, would the Rampal v Rampal (No 2) and Whiston v Whiston line of authorities preclude the respondent from benefiting as a result of the applicant's financial application? Pursuant to section 11(b) of the Matrimonial Causes Act 1973 (MCA 1973), a marriage is void if at the time of the marriage either party was already lawfully married or a civil partner. If a marriage is void, rather than a non-marriage, then the parties are entitled to a decree of nullity and an application for financial provision may be made. It is therefore clear that the party who was unaware of the bigamy at the time of the marriage is entitled to bring a claim. For a while, however, it was less clear whether the guilty...

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AAA asked to improve internal award review process

Law360: The American Arbitration Association (AAA) allows arbitral awards to go unchecked because the AAA operates without any formal audit mechanism, a disgruntled T-Mobile USA Inc customer told a Florida federal judge as he disputes an arbitral award favouring the company.

Bigamy and financial remedy revisited (PF v QF)

Family analysis: Despite still being married to another man at the time of the relevant marriage ceremony, the ‘wife’ in the case successfully resisted the ‘husband’s’ application to strike out her financial remedy application. The wife’s chief legal argument was that, following the Supreme Court’s judgment in Wyatt v Vince and its constraining effect on the scope of the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, r 4.4(1) concerning strike-out applications, it was no longer possible to strike out the financial remedy claims of a culpable individual pursuant to the authorities concerning bigamy and financial remedy (ie Whiston v Whiston and Rampal v Rampal (No 2)). This argument was rejected and the court found in crystal-clear terms that the Whiston jurisdiction is based on the ex turpi causa principle (a person shall not profit from their wrongdoing) and that the family court is empowered to strike out a claim where it ‘contravenes a rule of public policy to such an extent that to permit it to proceed would be...