‘Tax Avoidance’ is not defined in the Taxation Acts and attempts to define tax avoidance in the past have not been successful.
However, one definition of tax avoidance is:
‘a situation where less tax is paid than Parliament intended, or more tax would have been paid, if Parliament turned its mind to the specific issue in question’.
At a practical level the problem of tax avoidance is then essentially one of deciding what Parliament would have intended and identifying who should be asked to decide this.
This highlights an important tax avoidance issue: All fiscal authorities are becoming less and less concerned with fine distinctions between tax planning and tax avoidance and more and more concerned with the effect on the yield to the Exchequer.
That said, inspectors need to have, in simple terms, a working concept of ‘tax avoidance’ in order to properly identify cases which can be worked under Code of Practice 8.
Call 0800 471 4546 NOW for professional advice and representation for your Code of Practice 8 tax avoidance investigation.
The starting point should be that one would normally expect taxpayers to pay tax on their income or profits. Although, in Ramsay v CIR (54TC101) Lord Wilberforce reaffirmed that taxpayers are entitled to arrange their affairs to effect reductions in their tax liabilities, it is reasonable to assume that where a commercial transaction is carried out in a particularly convoluted way, then tax avoidance is afoot.
Although tax planning and tax avoidance is legitimate and tax avoidance arrangements to avoid specific charging sections or to maximise tax allowances, reliefs or exemptions may be perfectly acceptable, it does not follow that this tax avoidance planning always works. An example of an unsuccessful attempt to gain a tax avoidance advantage is to be seen in the case of Magnavox Electronics Company Limited v Hall at 59TC610, where the taxpayer simply sought to ensure that a chargeable gain made on a sale to a replacement purchaser arose in the same accounting period as a gain on the sale under the original contract.
In relation to a tax avoidance planning scheme, Tucker J approved the HMRC challenge (in the Roux case) saying;
‘the taxpayer entered into these [tax avoidance] schemes presumably after taking professional advice, in the full knowledge of what was involved and with the sole object of avoiding payment of tax. He must have known, or must be presumed to have known, of the risks of Revenue disapproval [of the Pension Scheme] and of all that involved, but he must have considered the fiscal advantages sufficiently attractive to warrant the taking of the risk.’
To speak to a tax avoidance investigation expert call KinsellaTax NOW on 0800 471 4546.