Guidance

Identify tax avoidance enabler penalties and when to appeal

Find out about the penalties for enabling a defeated tax avoidance scheme, the time limits, and how to appeal a penalty notice.

• From: HM Revenue & Customs
• Published: 30 April 2018
• Last updated: 21 September 2021 — See all updates

Overview

The ‘Penalties for enablers of defeated tax avoidance’ legislation is referred to as the ‘enablers legislation’ in this guidance. It takes effect from 16 November 2017, which is the date of Royal Assent to the Finance (No. 2) Act 2017.

This guidance has been updated for amendments made by Section 123 of Finance Act 2021, including when those amendments take effect.

A person is only liable for a penalty under the enablers legislation if the defeated tax arrangements they enabled are abusive.

The legislation only applies where there are abusive tax arrangements that have been defeated and both of the following apply:

• the tax arrangements are entered into on or after 16 November 2017
• the enabling action is taken on or after 16 November 2017

Example

A person designs a proposal for arrangements before 16 November 2017 and instructs a lawyer (also before 16 November 2017) to provide their opinion on the probable success of those arrangements.

The lawyer provides their opinion before 16 November 2017, which confirms that the idea has merit but the probability of success would be greater if one or two aspects were changed. The lawyer’s involvement with the design of those arrangements ends 16 November 2017.

The lawyer will not be an enabler for those arrangements, as long as they have not taken any other enabling actions for those arrangements on or after 16 November 2017.

Example

A person designs and starts to market a proposal for arrangements before 16 November 2017. They continue to market the proposal after 16 November 2017, and a taxpayer then enters into arrangements to implement that proposal.

The person who designed and marketed the arrangements accepts that they’re an enabler but suggests that the consideration they received, by way of fees, wholly or largely relates to their activities before 16 November 2017.

The person is an enabler by virtue of marketing the proposal after 16 November 2017, not by reference to their activities before 16 November 2017.

It’ll be a question of fact how much of the consideration relates to their marketing activities on or after 16 November 2017, and how much of it relates to what they did before 16 November 2017.

The penalty will be equivalent to the consideration for marketing activities after 16 November 2017.

When a penalty arises

Paragraph 1 of Schedule 16 to the Finance (No. 2) Act 2017 describes when liability to a penalty under the enablers legislation arises.

A penalty only arises where a taxpayer has entered into abusive tax arrangements and those arrangements are subsequently defeated.

When this happens, each person who enabled those arrangements is liable to a penalty. Find out who is classed as an enabler of tax avoidance.

A penalty can only be assessed if a designated HMRC officer decides that it should be assessed having considered a GAAR Advisory Panel opinion that is relevant to the arrangements in question, or equivalent arrangements.

There’s a special provision to determine when penalties can be assessed if the same proposal for tax arrangements (typically an avoidance scheme) has been implemented more than once, for example, where more than one user has implemented tax arrangements that are substantially the same as each other.

In these circumstances HMRC may not normally assess a penalty on any of the enablers of those arrangements, following the defeat of the relevant arrangements, until HMRC is satisfied that more than 50% of known users of that proposal for arrangements have been defeated.

Penalty amounts and relevant consideration

A penalty is payable by each person who is an enabler of the abusive tax arrangements that have been defeated.

The amount of the penalty in each case is the total amount, or value, of all the relevant consideration, which has either been received by the enabler or is receivable by them.

This means the full amount of the consideration received or receivable is included in the calculation of the penalty, with no deduction for any costs incurred by the enabler.

Any VAT that may have been charged by the enabler is not consideration for these purposes and will not be taken into account in the calculation of the penalty.

Example

Promoter A contacts a specialist for advice in connection with the design of a proposal for tax arrangements that are later defeated and found to be abusive.

Promoter A marketed the arrangements and received consideration totalling £250,000, by way of fees from users of the arrangements.

Promoter A paid the specialist adviser a one-off fee of £100,000 for designing the arrangements.

The amount of promoter A’s penalty in relation to the defeat of all users is equivalent to the full £250,000 received from those users of the arrangements.

The specialist adviser’s penalty is equivalent to the £100,000 fee they received.

Meaning of consideration

Consideration is not separately defined and takes its ordinary meaning.

It includes such things as fees, commissions, bonuses or anything else of value that has been received, or is receivable, by the enabler for enabling the defeated tax arrangements.

Consideration is receivable even if it has been intentionally or unintentionally deferred or is under an agreement to be paid at a future date.

This includes amounts that are contingent on the arrangements ultimately obtaining the intended tax advantage, for example ‘no win, no fee’.

As the arrangements in question must be defeated before an enabler penalty is determined, it’ll be a question of fact to what extent fees contingent on future events will form part of the consideration received or receivable by an enabler.

Consideration is also receivable if it’s received by another person, either on behalf of or in place of the enabler.

Meaning of relevant consideration

Consideration is relevant consideration if both of the following apply:

• the consideration has been received, or is receivable, for enabling abusive tax arrangements
• the same consideration has not already been taken into account in the calculation of any other penalty against that person for enabling those defeated abusive tax arrangements

Example

A financial adviser is engaged to market the proposed arrangements in the relevant consideration example. Fifty individuals enter into arrangements to implement the proposal.

The financial adviser receives £1,000 for each person that enters into arrangements to implement the proposal.

The specialist adviser does not receive any further payment.

The tax arrangements for all 50 users have been defeated by a combination of litigation and follower notices.

The financial adviser is liable to a penalty of £50,000, or £1,000 for each person to whom they marketed the proposal.

The specialist has not received any further consideration, so is liable only to the penalty already mentioned in the previous example, £100,000.

Consideration paid to another person

Paragraph 16 of schedule 16 Finance (No. 2) Act 2017 explains that if consideration for enabling abusive tax arrangements which are defeated is paid or payable to another person under an arrangement with the enabler, it’s treated as received or receivable by the enabler for the purposes of calculating the amount of the penalty.

Example

Fees of £250,000 are payable to Promoter A in relation to promoting abusive tax arrangements which are defeated.

Promoter A enters into an arrangement with an associate who resides outside the UK, who’ll receive £200,000 of those fees.

The amount of penalty payable by Promoter A in relation to all of the defeated arrangements is £250,000, not just the £50,000 that they received directly.

Apportioned on a just and reasonable basis

It may not always be possible to clearly identify the fee element that relates specifically to enabling the abusive tax arrangements.

This might be the case where an enabler receives one fee that covers various transactions. Paragraph 16(4) of schedule 16 Finance (No. 2) Act 2017 provides that in such circumstances, consideration is apportioned on a just and reasonable basis.

Example

Adviser A is engaged by a company to advise it in relation to an internal group reorganisation.

The adviser is also asked to give advice on how it can minimise a charge to Annual Tax on Enveloped Dwellings (ATED) in relation to a UK residential property it owns.

Adviser A:

1. Provides advice in relation to the group reorganisation.
2. Designs arrangements to avoid or mitigate the ATED as part of the overall reorganisation.

Those arrangements are later found to be abusive tax arrangements and are defeated. Adviser A receives a fee of £1 million in respect of its engagement. This fee will need to be apportioned on a just and reasonable basis between the advice at step 1 and the enabling at step 2.

Similarly, paragraph 16(5) of schedule 16 Finance (No. 2) Act 2017 applies if a person has, in substance, provided services which enable abusive tax arrangements which are defeated, but claims a variety of matters in addition to the enabling activities, for example, drafting documentation or providing company formation services.

The fees received or receivable for the services relating to enabling the defeated arrangements are taken into account when calculating the penalty.

This is the case even if the fee is received over a series of transactions.

Interaction with other penalties

Paragraph 17 of schedule 16 Finance (No. 2) Act 2017 provides that a penalty under the enablers legislation is to be reduced by the amount of any other penalty incurred by the enabler in relation to the same activity that gives rise to a penalty under the enablers legislation.

It’s possible for a person to be an enabler of abusive tax arrangements that were defeated, and for the defeat of those arrangements to be within scope of the ‘penalties for enablers of offshore evasion or non-compliance’ legislation in schedule 20 Finance Act 2016.

In such circumstances, paragraph 17 would apply.

For paragraph 17 of schedule 16 Finance (No. 2) Act 2017 to apply, the other penalty must not be a penalty under the enablers legislation at schedule 16, and must have been assessed, even if not yet payable or paid.

Similarly, paragraph 52 schedule 16 Finance (No. 2) Act 2017 states that a person will not be liable to a penalty under the enablers legislation if they’ve already been convicted of an offence in relation to the same activity.

Mitigation of penalty

Paragraph 18 of schedule 16 Finance (No. 2) Act 2017 allows HMRC to apply its discretion to reduce a penalty under the enablers legislation, which includes:

• being able to entirely remit the penalty
• to stay or agree a compromise in relation to proceedings for the recovery of that penalty — HMRC will only consider applying its discretion to reduce a penalty in exceptional circumstances

Assessment of penalty

Paragraph 19(1) of schedule 16 Finance (No. 2) Act 2017 sets out the procedure for assessing a penalty under the enablers legislation.

Once a person’s use of abusive tax arrangements has been defeated and the other procedural requirements of the enablers legislation have been met, HMRC must assess each enabler that’s liable for a penalty under the enablers legislation and notify them that a penalty has been assessed.

Limitations on when the penalty may be assessed

A penalty cannot be assessed if either of the following circumstances apply:

• an opinion of the GAAR Advisory Panel has not been obtained in respect of the defeated arrangements or arrangements equivalent to the defeated arrangements which were enabled
• HMRC is out of time to assess the penalty

There’s a special provision for determining when penalties can be assessed if a proposal for tax arrangements, or a scheme, has been implemented more than once so that there are multiple users of that scheme. Find out more about penalty assessments where there are multiple users.

When HMRC may assess the penalty on the basis of a reasonable estimate

If, having taken all reasonable steps to obtain information, HMRC is unable to determine the amount or value of the consideration received or receivable, HMRC may assess a penalty under the enablers legislation on the basis of a reasonable estimate of that consideration.

Payment date

Once a penalty under the enablers legislation has been assessed, it must be paid within 30 days beginning with the day on which the notification of the penalty is issued, unless the enabler appeals the penalty.

An assessment to a penalty under the enablers legislation is treated in the same way as an assessment to tax for procedural purposes and therefore can be enforced as if it were an assessment to tax.

Penalty assessment where there are multiple users

There are special provisions that apply where particular arrangements are one instance of a multi-user scheme. This prevents HMRC from assessing any enabler penalties until a specified percentage of those arrangements that implement the scheme have been defeated.

These special provisions were amended by section 123 of Finance Act 2021. The amendments apply to all cases where a taxpayer uses arrangements implementing a multi-user scheme that are enabled and defeated on or after 10 June 2021. This is the date that section 123 of Finance Act 2021 received Royal Assent.

The amendments to paragraph 21 of schedule 16 Finance (No. 2) Act 2017, by section 123 of Finance Act 2021, do not have effect in relation to a person who is liable to an enabler penalty solely by reason of actions of the person carried out before 10 June 2021. However, in determining whether either of the new conditions has been met in relation to particular tax arrangements, account may be taken of defeats incurred in the case of other related arrangements before 10 June 2021.

For a multi-user scheme that was enabled and defeated before 10 June 2021

Paragraph 21 of schedule 16 Finance (No. 2) Act 2017 sets out that where a proposal for arrangements is implemented more than once, by a number of tax arrangements which are related arrangements, HMRC must not assess a penalty on any enabler in respect of a defeat of any of those related arrangements until the required percentage of relevant defeats has been reached.

‘Related arrangements’ are arrangements that are substantially the same as each other and which implement the same proposal for arrangements.

The meaning of defeat is explained in the Abusive and defeated tax arrangements guidance.

The ‘required percentage of relevant defeats’ is reached when HMRC reasonably believes that more than 50% of the users of the related arrangements known to HMRC at the time the required percentage is reached, have been defeated.

However, an enabler who is liable to a penalty can request that the penalty is assessed before the required 50% is reached.

Example

A promoter designed a proposal for arrangements. A number of Financial Advisers marketed the proposal for the promoter, which has been sold to, and implemented by, a total of 100 individuals.

Although each user’s arrangements are unique to their circumstances, they’re all substantially the same because they implement the same proposal for arrangements. They are therefore related arrangements (scheme).

HMRC has defeated 25 of the 100 who implemented the proposal and obtained a General Anti-Abuse Rule (GAAR) Advisory Panel opinion that they do not consider the carrying out of the tax arrangements or equivalent tax arrangements was a reasonable course of action in relation to the relevant tax provisions. The remaining 75 users have appealed and the Upper Tribunal is due to hear the lead case.

Although HMRC is yet to defeat more than 50% of the known users of the related arrangements, one of the Financial Advisers, who sold the scheme to 10 people, all of whom are in the current 25 defeats, concedes that they have enabled abusive tax arrangements and that they are liable for penalties under the enablers legislation in relation to the 10 people they enabled.

They request that HMRC assess them on the 10 penalties to enable them to finalise their involvement with those defeated arrangements.

HMRC can assess those penalties but only as the request came from the enabler. Otherwise, HMRC would not be able to assess the 10 penalties on that enabler until at least 51 users of the scheme had been defeated.

For arrangements implementing a multi-user scheme that are enabled and defeated on or after 10 June 2021

Paragraph 21 of schedule 16 Finance (No. 2) Act 2017 as amended by section 123 of Finance Act 2021, stipulates that HMRC may not assess an enabler penalty for enabling arrangements implementing a multi-user scheme until either condition 1 or condition 2 is met.

Condition 1: there has been a tribunal or court defeat of at least one set of the arrangements implementing the scheme.

Once there has been a judicial defeat of one set of the arrangements implementing the scheme, HMRC will be able to issue enablers penalties in relation to all cases where a taxpayer’s implementation of the scheme has been defeated. This includes where the taxpayer has settled with HMRC.

Condition 2: where there has not been a judicial defeat, under a new tiered approach HMRC will be able to assess enabler penalties once it reasonably believes the required number or percentage of relevant defeats has been reached. This may happen where sufficient taxpayers have agreed to settle their enquiries with HMRC. The thresholds are as follows:

The number of related arrangements implementing the proposal	Required number or percentage of related arrangements where defeats have been incurred
20 or fewer	50% or more
Between 21 and 43 inclusive	11 or more
44 or more, but fewer than 200	25% or more
200 or more	50 or more

The amendments to paragraph 21 of schedule 16 Finance (No. 2) Act 2017 by section 123 of Finance Act 2021 do not alter existing requirements for there to be a GAAR Advisory Panel opinion in respect of the arrangements before HMRC may assess enabler penalties.

Example

A promoter designed a proposal for arrangements. A number of financial advisers marketed the proposal for the promoter and since 10 June 2021 it has been sold to, and implemented by, a total of 250 individuals. Although the individuals have particular features that are unique to their circumstances, for example details of the user’s name, the arrangements are all substantially the same because they implement the same proposal for arrangements. They are therefore related arrangements (scheme).

HMRC has obtained a GAAR Advisory Panel opinion in relation to the scheme. The panel’s opinion is that the carrying out of arrangements having the material characteristics referred to the panel is not a reasonable course of action in relation to the relevant tax provisions. HMRC has also reached contract settlements with 25 of the users counteracting the tax advantages claimed to arise from the arrangements.

The remaining 225 users appealed to the First-tier Tribunal, with 5 users selected as named appellants (lead cases). The remaining 220 users’ appeals being stayed behind the lead cases. The First-tier Tribunal dismissed the appeals in the lead cases. They determined that the adjustments or assessments that HMRC had made to counteract the relevant tax advantage should not be varied.

Three of the lead appellants appeal to the Upper Tribunal. The other 2 lead appellants decide not to appeal the determination of the First-tier Tribunal and their cases are now final. The remaining 220 users’ appeals continue to be stayed, pending the outcome of the appeals to the Upper Tribunal in the remaining 3 lead cases.

As the arrangements were enabled and defeated on or after 10 June 2021, the amendments to Paragraph 21 of schedule 16 Finance (No. 2) Act 2017, introduced by section 123 of Finance Act 2021 apply.

Before the First-tier Tribunal decision, HMRC had only defeated 25 (10%) out of the 250 related arrangements. Condition 1 would not apply as there was no tribunal or court defeat at that point. With 250 related arrangements, HMRC would need to have defeated 50 or more of the related arrangements for condition 2 to apply. Neither condition 1, or condition 2 had been met when HMRC defeated the 25 cases that were settled before the First-tier Tribunal’s determination in the lead cases. This means HMRC is prevented by the special provisions at paragraph 21 of schedule 16 Finance (No. 2) Act 2017 from assessing enabler penalties in relation to the settled cases.

Although 3 of the lead cases and the 220 stayed appeals decided to continue to pursue their appeals, the effect of the First-tier Tribunal’s decision and the withdrawal of 2 of the lead cases is that condition 1 is met. As condition 1 has been met, the special provisions at paragraph 21 of schedule 16 Finance (No. 2) Act 2017 do not prevent HMRC from assessing enabler penalties by reference to both the 2 defeated lead cases and the 25 cases that were defeated by contract settlement.

HMRC will be able to assess enabler penalties by reference to the remaining 223 related arrangements as and when they are defeated.

For arrangements implementing a multi-user scheme that are enabled and defeated both before and on or after 10 June 2021

A multi-user scheme may involve related arrangements enabled and defeated before 10 June 2021 and related arrangements enabled and defeated on or after 10 June 2021. Paragraph 21 of schedule 16 Finance (No. 2) Act 2017 as amended by section 123 of Finance Act 2021 will apply in these circumstances. This means that when determining whether condition 1 or 2 is met in relation to particular tax arrangements, account may be taken of defeats incurred in the case of other related arrangements before 10 June 2021.

Example

A promoter designed a proposal for arrangements. A number of financial advisers marketed the proposal for the promoter, which has been sold to, and implemented by, a total of 350 individuals. Although the individuals have particular features that are unique to their circumstances, for example details of the user’s name, the arrangements are all substantially the same because they implement the same proposal for arrangements. They are therefore related arrangements (scheme).

HMRC has obtained a GAAR Advisory Panel opinion in relation to the scheme. The panel’s opinion is that the carrying out of arrangements having the material characteristics referred to the panel is not a reasonable course of action in relation to the relevant tax provisions.

Of the 350 related arrangements, 200 of them implemented the arrangements before 10 June 2021, and 150 implemented them on or after 10 June 2021. Before 10 June 2021, 50 of the 200 related arrangements had incurred a defeat. No penalties could be assessed before 10 June 2021 in relation to those 50 defeats. This is because the required percentage of relevant defeats (more than 50% of the related arrangements) had not been reached.

Ten of the 150 related arrangements which were implemented on or after 10 June 2021 have incurred a defeat, meaning 60 defeats had been incurred in total in respect of the 350 related arrangements. As the enabling and implementation of these 10 related arrangements took place on or after 10 June 2021, condition 1 and condition 2 at paragraph 21 of schedule 16 Finance (No. 2) Act 2017 as amended by section 123 of Finance Act 2021 apply.

The total number of defeats of related arrangements is 60 and penalties would be due as condition 2 would have been met (more than 50 defeats). This is because when determining whether condition 1 or 2 is met in relation to particular arrangements, account may also be taken of defeats incurred before 10 June 2021.

Only the 10 cases implemented and defeated on or after 10 June 2021 can be assessed to an enabler penalty. This is because the amendments to paragraph 21 of schedule 16 Finance (No. 2) Act 2017 by section 123 of Finance Act 2021 do not have effect in relation to a person’s liability to an enabler penalty solely by reason of actions carried out by that person before 10 June 2021. For the related arrangements implemented before 10 June 2021, penalties can only be assessed once more than 50% of the related arrangements have been defeated, that is once 176 of the 350 related arrangements have incurred a defeat.

Normal time limits for assessing penalty

GAAR Advisory Panel opinions

Before a penalty under the enablers legislation can be assessed, a designated HMRC officer must obtain an opinion of the GAAR Advisory Panel in respect of the defeated arrangements or equivalent arrangements after which the penalty must be assessed within the relevant time.

The relevant time is the end of the 12 months beginning with the date as set out in the following circumstances:

• where a GAAR Advisory Panel opinion or opinions have already been obtained under the GAAR legislation, and a final decision notice within the meaning of paragraph 24(1) of schedule 16 Finance (No. 2) Act 2017 has been given to the user in relation to the arrangements to which the penalty relates — the date on which the user of the arrangements is defeated

• where a notice under paragraph 25 of schedule 16 Finance (No. 2) Act 2017 has been given by HMRC to the enabler advising that the defeated arrangements they enabled are equivalent to arrangements in respect of which a GAAR Advisory Panel opinion has been obtained under the GAAR legislation — the end of the time allowed for making representations in respect of that notice

• where there has been a referral to the GAAR Advisory Panel under paragraph 26 of schedule 16 Finance (No. 2) Act 2017 in relation to the defeated arrangements which the enabler enabled but a notice under paragraph 35 of schedule 16 Finance (No. 2) Act 2017 has not been given to the enabler in relation to those arrangements — the date on which the GAAR Advisory Panel Opinion is given in relation to the enabled arrangements

• where there has been a referral to the GAAR Advisory Panel under paragraph 26 of schedule 16 Finance (No. 2) Act 2017 of either of the following:

  • the enabled tax arrangements, but the enabler has not received a notice under paragraph 28 of schedule 16 Finance (No. 2) Act 2017 and a notice has been issued to the enabler under paragraph 35 of schedule 16 Finance (No.2) Act 2017 — the end of the time allowed for making representations in respect of that notice

  • tax arrangements which are equivalent to the enabled arrangements, and a notice has been issued to the enabler of the enabled arrangements under paragraph 35 of schedule 16 Finance (No. 2) Act 2017 — the end of the time allowed for making representations in respect of that notice

Normal time limits: incorrect declarations

A relevant lawyer can make a declaration under paragraph 44 of schedule 16 Finance (No. 2) Act 2017 that the person in relation to whom the declaration is being made is not an enabler, and therefore not in scope for a penalty under the enablers legislation.

If, following the making of such a declaration, facts come to light that in the Commissioners’ opinion are sufficient to indicate that the declaration contained a material inaccuracy, the relevant time for assessing a penalty on the person under the enablers legislation, in respect of any defeated arrangements in relation to which the incorrect declaration was made, is the later of the:

• relevant time as set out at either paragraphs 22(2), (3) or (4) of schedule 16 Finance (No. 2) Act 2017
• end of the 12 months beginning with the date on which the facts indicating that an incorrect declaration was made came to the Commissioners’ knowledge

Change to normal time limits: multiple users of the same proposal

For a multi-user scheme that was enabled and defeated before 10 June 2021

Where the same proposal for abusive tax arrangements is implemented more than once (multiple users of related arrangements) HMRC must not assess any enabler penalty until more than 50% of the known users of that proposal have been defeated.

In such circumstances the latest time HMRC may assess a penalty on any enabler is the later of the:

• relevant time given by paragraph 22(2) of schedule 16 Finance (No. 2) Act 2017
• end of the 12 months beginning with the date on which the required percentage is reached

However, if an enabler requests that their penalty is assessed before the required percentage is reached, the latest HMRC may assess penalties on the person who made the request is the later of the:

• relevant time given by paragraph 22(2) of schedule 16 Finance (No. 2) Act 2017
• end of the 12 months beginning with the date on which the request is made

For a multi-user scheme that was enabled and defeated on or after 10 June 2021

For arrangements implementing a multi-user scheme that are enabled and implemented on or after 10 June 2021, paragraph 21 of schedule 16 Finance (No. 2) Act 2017 was amended by section 123 of Finance Act 2021. Where the same proposal for abusive tax arrangements is implemented more than once (multiple users of related arrangements) HMRC must not assess any enabler penalty until either condition 1 or condition 2 is met. In such circumstances the relevant time for assessing a penalty on any enabler is the later of the:

• relevant time given by paragraph 22(2) of schedule 16 Finance (No. 2) Act 2017
• end of the 12 months beginning with the date on which the first of condition 1 or condition 2 was met

However, if an enabler requests that their penalty is assessed before condition 1 or condition 2 has been met, the relevant time is the later of the:

• relevant time given by paragraph 22(2) of schedule 16 Finance (No. 2) Act 2017
• end of the 12 months beginning with the date on which the request is made

Grounds for appeal

Paragraphs 37 to 39 of schedule 16 Finance (No. 2) Act 2017 set out the right of appeal against an assessment of a penalty under the enablers legislation.

There are 2 grounds for appeal. A person may appeal against a decision of HMRC on either or both of the following grounds:

• a penalty is not payable by that person
• the amount of the penalty specified in the assessment is incorrect

An appeal against the assessment of a penalty under the enablers legislation is treated in the same way as an appeal against an assessment to the underlying tax in relation to which the abusive tax arrangements that have been defeated sought to obtain an advantage.

This means that where appropriate, the person can:

• bring the appeal by notice to HMRC
• ask HMRC for a review of its decision to assess the penalty
• ask that the appeal is determined by the First-tier or Upper Tribunal

Penalty not payable until appeal is determined

If a person appeals against the assessment of a penalty under the enablers legislation, they are not required to pay the penalty until the appeal is finally determined.

Notification to Tribunal

A person can request that their appeal is determined by the Tribunal.

If the person notifies the Tribunal of an appeal against HMRC’s decision that a penalty under the enablers legislation is payable, the Tribunal may affirm or cancel HMRC’s decision.

If the person notifies the Tribunal of an appeal against HMRC’s decision about the amount of a penalty under the enablers legislation, the Tribunal may affirm HMRC’s decision or make another decision that HMRC had the power to make.

This includes applying the discretion HMRC has to reduce the penalty under paragraph 18 of schedule 16 Finance (No. 2) Act 2017.

HMRC mitigation available to Tribunal

The Tribunal may rely on paragraph 18 of schedule 16 Finance (No. 2) Act 2017 (HMRC’s discretion to mitigate a penalty) to mitigate the penalty in the same way that HMRC can.

This means the Tribunal may apply the same percentage reduction as HMRC has applied to a different starting point.

The Tribunal may also rely on paragraph 18 to a different extent but only in circumstances where it thinks HMRC’s decision in relation to the application of paragraph 18 is flawed when considered in light of the principles that apply in proceedings for judicial review.

Application of information and inspection powers

The enablers legislation provides for HMRC to check if a person is liable for a penalty for enabling abusive arrangements. This includes using the information powers in schedule 36 to the Finance Act 2008, as appropriately modified for the purposes of checking a person’s liability for a penalty for enabling abusive arrangements. HMRC will be able to use its formal powers to check penalty liabilities in relation to particular tax arrangements before those arrangements are defeated.

Paragraph 40 of schedule 16 Finance (No. 2) Act 2017 as amended by section 123 of Finance Act 2021, applies schedule 36 to the Finance Act 2008 for the purposes of both:

• checking a relevant person’s liability to a penalty under the enablers legislation in relation to particular tax arrangements, whether before or after those arrangements are defeated
• ascertaining the identity of any other person who has or may have enabled those arrangements

Schedule 36 to the Finance Act 2008 applies for those purposes subject to the modifications set out in the General Modifications section. This will allow HMRC to identify other suspected enablers and contact them to investigate their activities and advise them of their potential liability to an enablers penalty. This is intended to encourage behavioural change across the entire supply chain, thereby disrupting the sale of avoidance schemes and restricting the promotion and enablement of abusive tax avoidance.

A relevant person is any person an officer of HMRC has reason to suspect either:

• is or may be liable to a penalty under the enablers legislation
• will become or may become liable to a penalty under the enablers legislation if the relevant arrangements are defeated

The changes introduced by section 123 of Finance Act 2021 ensure that HMRC can use its formal information powers before the enabled arrangements have been defeated. The changes have effect in relation to tax arrangements whenever they were entered into, including arrangements that were entered into on, before or after 10 June 2021. This is the day on which section 123 of Finance Act 2021 received Royal Assent.

HMRC will issue information notices only where it considers particular arrangements are, or may be, abusive tax arrangements and has reason to suspect that the intended recipient of a notice has enabled those arrangements.

Some enablers may be concerned that they would be breaching client confidentiality by voluntarily providing client information. The information notice provides a clear statutory requirement on them to provide information or produce documents about the services they have provided in respect of the scheme. The information notice and accompanying factsheet will set out clearly what the recipient of the notice should do if they believe that certain information or documents being requested is, or may be, covered by Legal Professional Privilege.

HMRC recognises that enablers in the supply chain, other than the designer or manager of the arrangements, are likely to have only limited information about other potential enablers of those arrangements. The changes to paragraph 40 of schedule 16 Finance (No. 2) Act 2017 introduced by section 123 of Finance Act 2021 are mainly aimed at obtaining, from the designer or manager of the arrangements, information about other potential enablers. This will allow HMRC to identify other potential enablers and contact them to investigate their activities and inform them of their potential liability to an enabler penalty. This will disrupt the sale of avoidance schemes.

The change introduced by section 123 of Finance Act 2021 is also intended to improve the effectiveness of HMRC’s enquiries into enablers. It does this by removing the restriction (relating to relevant communications) on the power to require a tax adviser to produce information or documents in response to an information notice.

This change is aimed at preventing enablers from asserting that they are not required to provide the requested information, on the grounds that it consists of relevant communications.

Relevant communications means communications:

• between the tax adviser and either of the following:
  • a person in relation to whose tax affairs they have been appointed
  • any other tax adviser of such a person
• where the purpose of the communications is the giving or obtaining of advice about any of those tax affairs

Tax adviser for this purpose means a person appointed to give advice about the tax affairs of another person (whether appointed directly by that person or by another tax adviser of that person).

HMRC will only use the amended information powers to request information from a person so that HMRC can check:

• if the person is, or may become, liable to enabler penalties
• how much any enabler penalties would be

A tax adviser may continue to withhold any material they think is not required for the purpose of checking the enabler penalty position. This change prevents enablers from relying on the relevant communications restriction to challenge HMRC’s request for information, where the information is reasonably required for the purpose of checking the enabler penalty position.

More information about the application of schedule 36 in general can be found in the HMRC Compliance Handbook.

Example

A tax enquiry has been concluded into a person who has entered into tax arrangements which have been referred to the GAAR Advisory Panel. HMRC counteracts those arrangements under the GAAR on the grounds they are abusive.

Information provided to HMRC during the course of the enquiry identifies the name of the promoter and the fact that there are other potential enablers. For example, persons potentially falling within the meaning of enabling participant and financial enabler.

However, the information available to the taxpayer does not identify the names of these other potential enablers.

The application of schedule 36 to the Finance Act 2008 , as modified by paragraph 40 of schedule 16 Finance (No. 2) Act 2017, allows HMRC to request information from the promoter to identify those potential enablers and the nature of their involvement with the arrangements in question.

The information powers can be used at any time during the course of gathering information to establish whether a person is an enabler or to calculate the amount of any enabler penalty.

This could be during the course of an enquiry into the person that entered into the arrangements or once those arrangements are defeated.

General modifications

The general modifications of schedule 36, as it applies for the purposes of the enablers legislation are included at paragraph 41 of schedule 16 Finance (No. 2) Act 2017. These are:

• any provisions that cannot apply for the purposes of the enablers legislation are omitted
• references to ‘the’ or ‘a’ taxpayer are to be read as references to ‘the’ or ‘a’ relevant person whose position in relation to a liability for a penalty under the enablers legislation needs to be checked
• references to a person’s tax position are to be read as references to a relevant person’s position in relation to liability for a penalty under the enablers legislation
• references to prejudice to the assessment or collection of tax are to be read as including prejudice to the investigation of the relevant person’s position in relation to a liability for a penalty under the enablers legislation, in relation to particular tax arrangements or, as the case may be, the identification of any other person who has or may have enabled those arrangements
• references to a pending appeal relating to tax are to read as a pending appeal relating to an assessment of liability for a penalty under the enablers legislation

Specific modifications

The specific modifications to schedule 36 to the Finance Act 2008 are provided at paragraph 42 of schedule 16 Finance (No.2) Act 2017 as follows:

• the powers to issue a taxpayer notice at paragraph 1 of schedule 36 to the Finance Act 2008 and to inspect business premises, at paragraph 10 of schedule 36 (in both cases, as modified by the general modifications) have effect as if the reference to checking the taxpayer’s tax position included a reference to ascertaining the identity of any other person who has or may have enabled the particular tax arrangements in relation to which the relevant person’s position as regards liability to a penalty under paragraph 1 of schedule 16 is to be checked
• the power to inspect business premises of involved third parties at paragraph 10A of schedule 36 to the Finance Act 2008 applies as if references to the position of a person or classes of person as regards a relevant tax were reference to the position of a relevant person as regards liability for a penalty under the enablers legislation
• paragraph 25 of schedule 36 to the Finance Act 2008 is treated as omitted (this means the restriction on the power to require a tax adviser to produce information or documents in response to an information notice relating to relevant communications is removed)
• the right to appeal against penalties under paragraph 47 of schedule 36 to the Finance Act 2008 applies only insofar as it does not give a right of appeal against the amount of an increased daily penalty by virtue of paragraph 49A of schedule 36 to the Finance Act 2008
• the increased daily default penalty at paragraph 49A of schedule 36 to the Finance Act 2008 is modified as follows:
  • in sub-paragraphs (1)(c) and (2) ‘assessable’ is substituted for ‘imposed’
  • sub-paragraph (3) is substituted by a new sub-paragraph (3) which provides the tribunal must determine the day from which the increased penalty applies and the new maximum amount of that penalty and that in paragraph 40 of schedule 36 to the Finance Act 2008 for £60 there is substituted the new maximum amount
  • the existing sub-paragraph (4) is substituted by a new sub-paragraph (4) in which the new maximum amount may not be more than £1,000
  • the ‘amount’ in sub-paragraph (5) is substituted by the ‘new maximum amount’
• the notification of increased daily default penalty at paragraph 49B of schedule 36 to the Finance Act 2008 is modified to have the effect that:
  • sub- paragraph (1) reads ‘the tribunal makes a determination’ instead of ‘a person becomes liable to a penalty’
  • sub-paragraph (2) specifies ‘the new maximum amount and the day from which it applies’ instead of ‘the day from which the increased penalty is to apply’
  • sub-paragraph (3) is omitted
• paragraph 49C of schedule 36 to the Finance Act 2008 is treated as omitted and Paragraphs 50 and 51 of schedule 36 to the Finance Act 2008 are excluded from application

When details may be published

Part 10 of schedule 16 to the Finance (No.2) Act 2017 provides that the Commissioners may publish information about an enabler who has incurred a penalty under the enablers legislation. It sets out when information may be published and the restrictions in place.

The Commissioners may publish information about an enabler who has incurred a penalty that’s final where either of the following naming conditions is met over a period of 12 months:

• 50 or more other penalties which are reckonable penalties have been incurred by the enabler at the time when the particular penalty becomes final
• the amount of the penalty, either individually or in combination with other penalties which are reckonable penalties incurred by the enabler, is more than £25,000

Information that may be published

The Commissioners may publish any of the following information in a format they consider appropriate:

• the enabler’s name, which can include any pseudonym, trading or previous name
• the enabler’s address or registered office address
• the nature of the enabler’s business
• the total number of penalties and reckonable penalties incurred by the enabler
• the total amount of the penalties and reckonable penalties
• any other information the Commissioners consider appropriate in order to make the enabler’s identity clear

Penalties to be disregarded when considering whether naming conditions are met

For the purpose of determining whether the naming conditions are met certain penalties incurred by the enabler are disregarded.

For arrangements that were enabled and implemented before 10 June 2021, paragraph 48 of schedule 16 Finance (No.2) Act 2017 specifies the penalties that are to be disregarded. These are as follows:

• a penalty which has been reduced to nil or stayed
• a penalty by reference to which information has already been published
• a penalty where the arrangements concerned are related to other arrangements and HMRC reasonably believes that at least one of the related arrangements has not been defeated, or the penalty for enabling the arrangements concerned or at least one of the related arrangements is not final
• a penalty where the arrangements concerned are related to other arrangements by reference to which a penalty is final and information about the enabler has already been published

For cases where a taxpayer uses a multi-user scheme that was enabled and implemented on or after 10 June 2021, under paragraph 48 of schedule 16 Finance (No. 2) Act 2017 as amended by section 123 of Finance Act 2021, the penalties that are to be disregarded are as follows:

• a penalty which has been reduced to nil or stayed
• a penalty by reference to which information has already been published
• a penalty where the arrangements concerned are related to other arrangements by reference to which a penalty is final, and information about the enabler has already been published

Time limits for publishing information

Where an enabler has incurred one or more penalties that are final and the naming conditions are met, information cannot be published after the relevant time.

The relevant time is the end of the period of 12 months beginning with the date on which the penalty became final.

If there’s more than one penalty, the relevant time is the latest day on which any of those penalties become final. The information can continue to be published or be republished as the case may be, until the end of 12 months beginning with the date on which it was first published.

Example

If a penalty becomes final on 1 January 2018, then information must be published by 31 December 2018.

If information is published on 1 December 2018, then information can continue to be published or republished until 30 November 2019.

The information is not prevented from continuing to be published, or being republished, just because the relevant time by which the information must first be published has passed.

Provided the information has been published by that date, it can continue to be published until 12 months after the date on which it was first published.

Disregarded enabler penalties are not taken into consideration in deciding whether the naming conditions are met.

Right to make representations

Before publishing information the Commissioners must inform the enabler that they’re considering publishing information about them, and give them an opportunity to make representations to advise if there are any exceptional reasons why their information should not be published.

The process here will follow the same approach as for publishing details of deliberate tax defaulters (PDDD) (see section CH191040 of HMRC’s Compliance Handbook). The person will generally have 30 days in which to make such representations.

The Commissioners will consider all representations carefully before deciding whether or not to publish the information.

Meanings of key legislative terms

There are some key terms used in part 10 of schedule 16 Finance (No. 2) Act 2017.

Reckonable penalties

Another penalty is a reckonable penalty if:

• it’s a penalty under the enablers legislation incurred by that enabler which has become final either before or at the same time as the penalty in question
• the entry date of that other penalty is not more than 12 months from the entry date of the penalty in question
• the penalty is not of a kind that should be disregarded under paragraph 48 of schedule 16 Finance (No. 2) Act 2017 — check penalties to be disregarded

Entry date

The entry date of a penalty is the latest date on which the arrangements concerned or any agreement or transaction forming part of those arrangements were entered into by the user of the arrangements.

The entry date of a penalty is not more than 12 months from the entry date of another penalty if the entry date of the penalties is the same, or the period between whichever of the entry dates is earlier and ending with whichever of the entry dates is later, is 12 months or less.

Final penalties

A penalty under the enablers legislation becomes final in the following circumstances:

• if the penalty has been assessed and a contract settlement has not been made in relation to it, at the time when the period for any appeal has expired or when the final appeal relating to it is finally determined
• if a contract settlement has been made in relation to the penalty, at the time when the contract is made

For these purposes, a contract settlement is a contract between the Commissioners and the enabler, such that the Commissioners agree not to assess the penalty or take proceedings to recover it if it has been assessed.

For the purposes of this guide:

• ‘the arrangements concerned’ means the arrangements to which a penalty under the enablers legislation relates

• ‘related arrangements’ are arrangements that are related to the arrangements concerned
• arrangements are ‘related to’ each other if they implement the same proposal for arrangements and are substantially the same as each other

Published 30 April 2018
Last updated 21 September 2021 + show all updates

1. 21 September 2021

   Information about assessments, inspection powers, modifications and restrictions on power to publish information has been updated.

2. 30 April 2018

   First published.