Guidance

Joint and several liability: penalties charged for facilitating avoidance or evasion — JAS/FS3

Published 17 November 2021

You should read this factsheet if you may be jointly and severally liable for the relevant tax liability of a company that has been charged penalties for facilitating avoidance or evasion.

We’ll tell you if you’re jointly and severally liable by giving you a joint liability notice. There is more information about joint liability notices in the section ‘What a joint liability notice is’.

Where this factsheet refers to a ‘company’, this could also mean a ‘limited liability partnership’.

Where this factsheet refers to ‘directors’, this means one of the following, a:

• director — as set out in section 250 of the Companies Act 2006
• shadow director — as set out in section 251 of the Companies Act 2006
• participator — as set out in section 454 of the Corporation Tax Act 2010

This factsheet at a glance

This factsheet tells you:

• what to do if you need extra support
• about joint and several liability
• what a joint liability notice is
• that we may give you a joint liability notice if certain conditions are met
• that if we give you a joint liability notice, you’ll be jointly and severally liable for the relevant tax liability
• how we might reduce the amount you’re jointly and severally liable for
• where to find more guidance on joint and several liability notices

If you need extra support

If you have any health or personal circumstances that may make it difficult for you to deal with us, please let us know. We’ll help you in whatever way we can. Find out how to get help from HMRC if you need extra support.

About joint and several liability

Legislation introduced in the Finance Act 2020 aims to deliver fairness across the tax system by:

• deterring the use of tax avoidance and tax evasion

• influencing the behaviour of those who:

  • see insolvency as a way of avoiding their tax or penalty liabilities relating to tax avoidance or tax evasion
  • repeatedly fail to meet their tax liabilities through insolvency

The purpose of joint and several liability is to make directors of companies jointly and severally liable for the company’s tax liability in certain circumstances.

This includes where repeated insolvency proceedings are used to avoid the payment of relevant company liabilities.

Where this happens, we may issue a joint liability notice to the individuals that benefited from the tax evasion and avoidance.

What a joint liability is

A joint liability notice tells you that you’re jointly and severally liable with a company, and with anyone else that’s been given a joint liability notice, for the relevant tax liability.

Where we give you a joint liability notice for penalties charged for facilitating avoidance or evasion, the relevant tax liability is the amount of the penalty or penalties.

Being jointly and severally liable means that each of you are jointly responsible for paying the amount due. It does not matter who pays or how much each of you pays, as long as the amount is paid in full. The amount you’re jointly responsible for will be reduced if you’ve paid certain penalties. There is more information about this in the section ‘When the relevant tax liability is reduced’.

Conditions for giving a joint liability notice

An authorised HMRC officer can give a joint liability notice to an individual if all the conditions A to D below have been met. These conditions only apply to the relevant tax liability of a company that has been charged penalties for facilitating avoidance or evasion.

Condition A

Either a penalty has been charged by HMRC or proceedings have started before the First-tier Tribunal for a penalty, under any of the following provisions:

• penalties for breaches of certain obligations relating to disclosure of tax avoidance schemes (D) — section 98C(1) of the Taxes Management Act 1970
• promoters of tax avoidance schemes (POTAS) penalties — paragraphs 2 and 3 of Schedule 35 to the Finance Act 2014
• enablers of offshore tax evasion or non-compliance penalties — paragraph 1 of Schedule 20 to the Finance Act 2016
• enablers of defeated tax avoidance — Part 1 of Schedule 16 to the Finance (No 2) Act 2017
• penalties for breaching certain obligations relating to disclosure of tax avoidance schemes: VAT and other indirect taxes (DASVOIT) — Part 2 of Schedule 17 to the Finance (No 2) Act 2017

Condition B

The company is subject to an insolvency procedure, or there is a serious possibility of it becoming subject to an insolvency procedure.

Condition C

The individual was a director or shadow director of the company or a participator in it, at the time of any act or omission for which (one of the following applies):

• the penalty was imposed
• the proceedings for the penalty had started

Condition D

There is a serious possibility some or all of the penalty will not be paid.

If the company no longer exists

If the company that has been involved with the tax avoidance or evasion no longer exists, where we refer to you being jointly and severally liable with the company, this means you being:

• solely liable for the relevant tax liability where no other individual has been given a joint liability notice for that liability
• jointly and severally liable with anyone else that has been given a joint liability notice for the relevant tax liability

Where this factsheet refers to a company’s liability or liabilities, in the case of a company that no longer exists, this means, its liability or liabilities immediately before it ceased to exist.

More information about joint and several liability notices

Find out more about joint and several liability notices for tax avoidance and tax evasion cases.

Your appeal and review rights

If we give you a joint liability notice, the notice will include our offer to review our decision. If you disagree with our decision you can accept our offer to review it or you can appeal to the independent tax tribunal. However, you cannot challenge the existence or amount of any tax liability of the company to which this joint liability notice relates.

If you want a review

You can accept our offer to review the decision to give you the notice by writing to tell us why you think our decision is wrong. You must do this by the later of:

• 30 days from the date of the notice
• if we’ve given you an extension notice, the date shown on the extension notice

An HMRC officer not previously involved in the matter will carry out the review. If you disagree with the outcome of the review, you can still appeal to the tribunal.

We’ll take into account anything you tell us when you ask for a review. You’ll have a chance to give more information about your case during the review.

You cannot accept our offer of a review and appeal to the tribunal at the same time.

If you want to appeal to the tribunal

If you disagree with the notice, you can appeal to the First-tier Tribunal.

If you want to appeal you must do so by the later of the following:

• 30 days from the date of the notice
• if we’ve given you an extension notice, the date shown on the extension notice
• if you’ve asked us for a review, 30 days from the date of the notice telling you the review outcome

If you appeal to the tribunal you’ll need to send them a copy of the notice at the time. If you do not, they may refuse to consider your appeal.

Appeal in respect of company liability

If you want to appeal or take part in an appeal on behalf of the company:

• you must have been made jointly and severally liable for a tax liability of the company
• the company must be subject to an insolvency procedure
• an appeal by the company for that tax liability must not be in progress or been resolved

The appeal must be made within 30 days of the date the joint liability notice is given and may be made even if a time limit for the company to appeal has expired.

More information about appeals and reviews

To find out more about appeals and reviews, read:

• disagree with a tax decision
• how to get a review of an HMRC decision

Find out how to appeal to the tax tribunal. You can also phone the tax tribunal helpline.