IEIM740050 - When is Assistance or Advice given

The point at which assistance or advice should be treated as ‘provided’ will depend on the facts of the case. The examples below illustrate this:

• An accountant receives a request for advice on the correct treatment of a transaction. The accountant researches the issue and finds the answer. The advice is provided promptly by email. The date of the email will be the date the advice is provided.

• In the same scenario, having found the answer, the accountant phones the client to let them know the correct treatment, but delays sending the final email to try to delay having to make a report. The advice was given when the phone call was made, and the following day is when the 30 day period starts.

• A lawyer is providing advice on a complex arrangement. Over several months, the lawyer and the client meet several times to discuss the arrangement, and the lawyer provides several drafts of the advice, and as the arrangement evolves, so does the content of the advice. They have a final meeting where the lawyer sets out what the advice will say, and barring minor adjustments, the final written advice reflects that discussion and is provided promptly thereafter. While it could be argued that the meeting is the point where the advice is provided, in practice HMRC would accept that the 30 day reporting window started the day after the final written advice was sent, provided it was sent without undue delay. However, if there is evidence of a material delay in providing the final advice, this treatment will not necessarily apply, and HMRC may seek to impose a penalty on the basis that the reality is that the advice was provided at the meeting.

• A wealth manager makes a comment to a client during an informal catch-up about the possible benefits of transferring certain intangible assets to an overseas subsidiary and suggests that the client may want to look into this in more detail. Although this could be considered to be providing advice, the reporting obligation is not yet triggered, as the arrangement itself is insufficiently clear. The details of the arrangement have not yet been worked out, and the comment is too far removed from the arrangement to be “advice… with respect to designing, marketing, organising, making available for implementation, or managing the implementation” of any arrangement. Of course, if subsequently the client does some further research and seeks more specific or detailed advice about how the arrangement might work, the reporting obligation could be triggered at a later date.