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Under the ‘Requirement to Correct’, the deadline for submitting a disclosure of offshore non-compliance has always been 30 September 2018. HMRC have encouraged taxpayers to inform them of any necessary corrections using the existing HMRC’s formal disclosure routes. As these existing routes have their own timelines, HMRC have provided some clarity as to how the ‘Requirement to Correct’ will work in practice.

Worldwide Disclosure Facility (WDF)

A disclosure using this facility is made via HMRC’s Digital Disclosure Service (DDS). If by midnight on 30 September 2018 you register your intention to make a disclosure, you will not be liable to penalties for any failure to correct provided the disclosure process is completed fully and accurately within the 90 day period allowed by the WDF. You will still be subject to the normal penalty regime.

No account will be taken of the complexity of any given case so an extension to the 90 day period will not be granted when considering the failure to correct penalty. To be absolutely clear, HMRC have stated that anyone registering for the DDS must supply all the required information by 29 December 2018 at the latest.

It is still possible to register for the WDF by telephone. Anyone wishing to do this must register by 4 September 2018.

Contractual Disclosure Facility (CDF)

If, on or before 30 September 2018, you wish to make a disclosure of deliberate behaviour involving offshore tax non-compliance, you can complete form CDF 1. Form CDF 1 must be emailed to HMRC’s Contractual Disclosure Facility (CDF) at centre.cop9@hmrc.gsi.gov.uk. This will engage HMRC under their Code of Practice 9. You will, in effect, be voluntarily owning up to deliberate tax offences. If your request is accepted, you will need to submit a complete and accurate outline disclosure of the offences involved within 60 days of being requested to do so. HMRC have stated that as far as the failure to correct penalty is concerned, ‘in no circumstances’ will this 60 day deadline be extended.

Your outline disclosure must be complete, accurate and in time. If so, you will not be liable to any higher penalty for the failure to correct any issue detailed in that outline disclosure. The normal penalty regime will still apply.

HMRC enquiry already underway

It may be that HMRC is already undertaking an enquiry into your affairs. If so, then on or before 30 September 2018, you must tell the person conducting the enquiry that you wish to make a disclosure of offshore tax non-compliance. You will then have until 29 November 2018 to submit to that person an outline disclosure showing the details of the non-compliance, the years involved and a summary of how the non-compliance came about. HMRC will also wish to know the amounts involved and what records are available to support the disclosure.

Such a disclosure will remove the risk of a higher penalty for the failure to correct but as with the Disclosure Facilities above, the normal penalty regime may still apply.

Summary

Under the ‘Requirement to Correct’ the penalties for failing to alert HMRC to any tax errors or omissions prior to 30 September 2018 are severe, starting at a minimum of 100% of the tax lost. In practice HMRC will seek to apply 200% penalties of the tax due with mitigation for co-operation and the quality of the disclosure made. This applies even if there has been no deliberate attempt to evade, avoid or reduce tax.

Edwin Coe’s Tax team includes senior former HMRC Investigators with extensive experience of enquiries, especially those under the WDF and Code of Practice 9.

If you would like to have a confidential discussion in relation to any concerns that the RTC may create for you or your clients, please speak to Frank Strachan – Head of Tax, Dmitri Surendran – Tax Director, Bill Duggan – Tax Manager or your usual contact within the Edwin Coe Tax team. We will be happy to provide the necessary guidance.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing. This guide concerns the law in England and Wales and is intended for general guidance purposes only. It is essential to take specific legal advice before taking any action.

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