Crossing that line can lead to hefty fines and prosecution. We have gathered examples from recent and historic high-profile cases to help you unpick the fine line between tax avoidance and tax evasion.
Tax evasion is back in the news...
The Income Tax investigation of Alkem Laboratories has uncovered significant instances of tax evasion and fraud.
During raids conducted in September, documents were seized revealing alleged fraudulent deductions exceeding Rs 1000 crore and illicit payments made to doctors and medical practitioners to promote Alkem's drugs.
The investigation focused on the company's operations in Sikkim, uncovering bogus claims and excessive deductions. According to a senior Income Tax official, Alkem Laboratories faces severe penalties for these actions.
Differences between tax avoidance & tax evasion
- What is tax avoidance?
- What is tax evasion?
- How does tax evasion differ from tax avoidance?
- What are the consequences of tax evasion?
- What is your only defence against tax evasion?
- How can you stop the facilitation of tax evasion?
What is tax avoidance?
Tax avoidance is when a person or company exploits the tax system to reduce tax liabilities, such as establishing an offshore company in a tax haven. Simply put, it means paying as little tax as possible while still staying on the right side of the law.
Examples of tax avoidance schemes include advance deeds, loan payments, grants, tax deductions, credits, or exemptions that are legally available to reduce tax liability.
According to the UK government website, tax avoidance involves “bending the rules of the tax system to gain an advantage Parliament never intended”. It occurs when people operate within the letter of the law but not the spirit.
As part of their 'Don't Get Caught Out' campaign, the UK government is clamping down on tax avoidance schemes, including ones promoted by AML Tax UK Limited, Tailored Resourcing and Able Ltd.
What is tax evasion?
Tax evasion is when a person or company escapes paying taxes illegally. This is typically done by concealing the true state of their financial affairs from tax authorities.
Common examples of tax evasion include:
- Not reporting or under-reporting income to the tax authorities
- Keeping business off the books by dealing in cash or other devices with no receipts
- Hiding money, shares, or other assets in an offshore bank account
- Misreporting personal expenses as tax-deductible business expenses
- Using company property for personal use without a valid business reason
How does tax evasion differ from tax avoidance?
There is a fine line between avoidance and evasion. Many tax avoidance schemes devised by accountants and marketed towards the wealthy have been heavily criticised, leading to HM Revenue & Customs (HMRC) shutting them down, arguing that they amount to tax evasion.
Jimmy Carr, Gary Barlow, Starbucks, Google and Amazon are just a few names you may have seen in the media connected with tax avoidance and evasion schemes.
In the case of Jimmy Carr, he received public scrutiny when news surfaced that he was involved in the K2 Scheme, a tax avoidance arrangement which meant that the rich paid less than 1% tax, ultimately costing the tax man £168m.
Similarly, pop star Gary Barlow and many other celebrities invested in a scheme known as Icebreaker, which purported to find finance for creative projects within the music industry and offer a return for investors, but in fact, generated losses. Barlow, along with two of his Take That bandmates, Mark Owen and Howard Donald, and the band's former manager, Jonathan Wild, have repaid more than £20m to HMRC after pouring £66 million into the scheme.
They were penalised because HMRC deemed this an "aggressive" tax avoidance scheme. If you go up against HMRC and lose, you could be ordered by the courts to repay the tax, the interest and any penalties it deems fit.
What are the consequences of tax evasion?
Are businesses liable for not preventing tax evasion?
The Criminal Finances Bill 2016-17 introduced a range of new penalties to crack down on financial crime. Included were two specific offences related to tax evasion.
Now, companies can find themselves liable for failing to prevent the facilitation of tax evasion. In other words, professional advisors who help their clients evade tax could face fines of up to £5,000.
What's more, HM Revenue & Customs (HMRC) will not be shy in naming and shaming those companies involved. Companies face penalties of up to 200% of the tax due under the Criminal Finances Act (2017).
The bill should come as no surprise. During her leadership campaign to pursue companies over tax avoidance, the UK Prime Minister at the time, Theresa May, stated:
“It doesn’t matter to me whether you’re Amazon, Google or Starbucks, you have a duty to put something back, you have a debt to fellow citizens and you have a responsibility to pay your taxes.”
The UK was one of the first countries to introduce this power. The Bill brought new criminal offences applying to all organisations, whether or not they are based in the UK.
The two tax evasion offences are:
- Failure to prevent the facilitation of UK tax evasion and
- Failure to prevent the facilitation of overseas tax evasion.
This means that a company will be held liable if one of its employees or contractors is proven to have aided and abetted a person in evading tax, even if the company didn't have any knowledge of the associated persons facilitating tax evasion.
These offences bear a resemblance to the corporate offence under the Bribery Act in that they are extraterritorial - they cover conduct that takes place anywhere in the world.
Since 2010, the government has introduced over 100 measures to tackle tax avoidance, evasion, and other forms of non-compliance that secured and protected over £220 billion that would otherwise have gone unpaid. From 2018 to 2019, HMRC secured a record £34.1 billion in additional tax through activity tackling tax avoidance, evasion and non-compliance.
The clampdown was originally aimed at accountants, bankers and lawyers - who actively promote tax avoidance or evasion schemes - and their wealthy clients. However, in reality, the Act impacts a whole host of companies. For example, the video games industry has come under the spotlight.
Notable UK tax evasion examples
HMRC’s fraud investigations led to over 600 individuals being convicted for their part in tax crimes in a single year. Their Fraud Investigation Service brings in £5 billion a year through civil and criminal investigations.
Clearly, some individuals will go to great lengths to abuse the system and not pay their taxes. But the convictions show just how seriously the HMRC is taking tax evasion. Prison sentences are getting longer, too, and this is likely to continue.
The examples below have a notable trend: tax evasion often occurs with other crimes such as smuggling and money laundering.
1. Fraudulent investment claims
Antony Blakey and John Banyard, directors at Ethical Trading and Marketing, who attempted to steal more than £60m through a fraudulent tax avoidance scheme claiming to invest in HIV research and conservation, were jailed for 14 and a half years.
2. VAT avoidance
A Berkshire-based gang selling illicit alcohol were jailed for more than 46 years. Evidence showed that they stole £34m in VAT and laundered £87m through more than 50 bank accounts in Britain, Cyprus, Hong Kong, Dubai and other foreign countries.
3. Avoid tobacco taxes
Robert Zduniak was part of an organised gang that processed smuggled raw tobacco in illegal factories. He was tracked down to a Prague hideaway and brought back to the UK to serve an 8-year sentence for his part in a £17m tax fraud.
4. Avoiding fuel taxes
Five people were jailed for 16 years after distributing and selling an estimated 4.8 m litres of illegally mixed kerosene and diesel to unsuspecting motorists, including haulage companies across the South East.
5. Fraudulently reclaimed VAT
A father and son pair were convicted for claiming £1m in VAT repayments after they lied about spending £14 million on building new properties. Stephen Howard, a former Top Gear mechanic, was jailed for helping them flee the UK to Spain.
6. Fake investments
Five tax fraudsters who devised a fake eco-investment scheme as a tax break for wealthy investors were jailed for 43 years. They were also ordered to repay £20m or face another 39 years behind bars and still owe the money.
7. Avoiding tobacco taxes
Dhanji Varsani claimed to be unemployed while driving high-powered vehicles, playing at top golf courses and enjoying holidays in places like Dubai. He was jailed for nearly 4 years for smuggling almost 7 tonnes of hand-rolling tobacco and failing to pay the £1.2m owed in excise duty.
8. VAT fraud
Fictitious transport firm boss Lee Hickinbottom conspired with his former partner to submit fraudulent VAT repayment claims to HM Revenue and Customs (HMRC) between 2014 and 2017. Hickinbottom was convicted of stealing £1.3m in tax-payers money. Spending included buying property in cash, home improvements and more than £1 500 in Lego.
9. Gift aid tax fraud
Dale Hicks, the voluntary treasurer of a charity for an ex-offenders charity (yes, you did read that correctly!), was jailed for 3 years. He had tried to steal more than £330 000 in a Gift Aid repayment fraud to fund a lavish holiday, including a £25 000 cruise.
Famous US tax evasion examples
a. Walter Anderson
Walter Anderson's case is the biggest tax evasion case in U.S. history. The telecommunications entrepreneur was convicted for hiding his earnings through aliases, offshore bank accounts, and shell companies. While on trial in 2006, Anderson admitted to hiding approximately $365 million worth of income. He was sentenced to nine years in prison and issued a fine of almost $400 million in back taxes, fees and penalties.
b. Al Capone
Prosecutors worked for years to build a case against notorious crime boss Alfonse “Scarface” Capone. Eventually, the only thing they could get him on was tax evasion, and in 1931, Capone was sentenced to eleven years in prison and fined $80,000. Capone only served seven years in prison, but it worked to scare other people off not paying their taxes. More than $1 million in unpaid taxes were submitted the year after his conviction.
c. Leona Helmsley
Hotel operator Leona Helmsley and her husband were accused of billing millions of dollars in personal expenses to their business to escape taxes.
Helmsley, dubbed the 'Queen of Mean', was famously quoted as saying, "We don't pay taxes. Only the little people pay taxes." She was convicted on three counts of tax evasion and served 18 months in prison.
What is your only defence against tax evasion?
Since the Paradise Papers and Panama Papers data leaks, governments worldwide have recouped over $1.2 billion, with hundreds of cases still underway.
The evidence shows that the risk for businesses is greater than ever. So, with this in mind, can you be sure you are doing everything in your power to prevent any form of tax evasion associated with your company?
After all, the penalties for companies, if found guilty, can be severe. They include unlimited fines, confiscation orders and serious crime prevention orders.
The only defence that a company has is to show that they have taken reasonable steps to prevent the facilitation of tax evasion.
So, if you are a business owner, it is vital that you and your employees understand what tax evasion is and be aware of how you could inadvertently aid tax evasion.
How can you stop the facilitation of tax evasion?
We have five simple steps to follow to help you show that your company is trying to avoid facilitating tax evasion.
Compliance step 1
Provide information and regular training to all staff
Your staff need to be clear on tax evasion rules and know what they must do to comply, including watching out for red flags, conducting due diligence checks, and raising any concerns promptly. You must be able to demonstrate when your training was delivered, what the content was, whether employees understood the violations of the law and whether they made an attestation. For all these reasons, companies often do this training as e-learning - often choosing a provider like Skillcast!
Compliance step 2
Know who poses a high risk of tax evasion in your company
Entities with complex tax planning structures, difficulties establishing beneficial owners, customers with unsubstantiated sources of funds or wealth, and also companies based offshore in jurisdictions with high levels of secrecy all pose a higher risk. Tax advisory, legal and financial service firms are also considered high risk, as are companies offering private wealth management.
But every company runs the risk of aiding tax evasion, e.g. in the way you pay your suppliers, your consultants, your facilities management company, and how you help your clients. Recently, a former banker was fined €500k and given a 12-month suspended prison sentence for helping wealthy clients hide €1.6bn from tax authorities.
So, whether your company is in one of these high-risk businesses or not, it's good to conduct a risk assessment to identify the individuals who might risk tax evasion through their actions.
Compliance step 3
Conduct third-party due diligence
This is especially important for third parties and customers to ensure you are not conducting business with anyone who may be involved in tax evasion. This should be proportionate to the level of risk faced. In short, the higher the level of risk, the more information or due diligence is required.
Develop criteria, monitoring and screening processes to check customer tax compliance status.
Remember that tax evasion doesn't just apply to companies or customers with links to offshore tax havens; e.g. non-US financial institutions are also obliged to check the tax status of US citizens under FATCA.
New international standards (the OECD's Common Reporting Standard) are designed to ensure tax transparency and help combat tax evasion.
Compliance step 4
Distinguish between tax evasion and tax avoidance
Tax evasion. Tax avoidance. One is legal. One isn't. Your company must know the difference.
Tax avoidance is when a person or company legally exploits the tax system to reduce tax liabilities, such as establishing an offshore company in a tax haven. Tax evasion is when a person or company escapes paying taxes illegally. Typically, individuals or companies commit this illegal action by concealing the true state of their affairs from tax authorities.
Compliance step 5
Report any suspicions of tax evasion
Encourage your employees to report any knowledge or suspicion of tax evasion or other financial crimes via your company's whistle-blowing hotline or any other reporting channels you may have. If appropriate, you must have procedures to ensure that such reports are attended to promptly and passed on to law enforcement authorities.
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