Do you feel that your tax adviser has failed to provide you with the correct tax advice? Are you facing client accusations about not meeting the required professional standard (e.g. under the Professional Conduct in Relation to Taxation (PCRT))?

A tax adviser is required to provide advice to the standards of a reasonably competent adviser. If this hasn’t happened, the client may be entitled to claim professional negligence and be paid compensation in damages, either for breach of contract and/or breach of the laws relating to negligent advice.

In any negligence claim, the relevant question is whether a reasonably competent specialist tax adviser (whether lawyer, ICAEW, CTA, TEP etc.) at the time in question, with particular expertise in the relevant area of tax, applying proper skill and care, could have advised as the adviser did regarding the particular planning or other tax matter, such as the availability of a tax relief (e.g. entrepreneurs’ relief or substantial shareholding relief).

If the answer to that question is “yes”, there is no negligence just because other reasonably competent tax professionals of equivalent expertise would have taken a different view or advised in different terms. In other words, was the advice within the spectrum of advice that a reasonably competent tax professional could have properly given?

Professional negligence claims can be highly complex. Instructing a specialist professional negligence barrister with direct experience of the tax system as early as possible can ensure you get the support you need to deal with a claim (or to defend against such a claim).

Have you been the victim of a tax adviser who has failed to act within professional standards (such as the PCRT)? Have you suffered financial loss as a result?

Experienced tax barrister Julian Hickey actively advises on claims for professional negligence relating to one-off tax planning advice and generally in relation to tax schemes which have been challenged by HMRC. He can assess your case and provide strategic legal advice as well as representation in court if required.

Julian Hickey also defends tax advisers facing claims of professional negligence (including alleged breaches of the PCRT). Having worked as a solicitor, barrister and as a Partner in major City law firms advising on tax planning, Julian has developed a wide-ranging knowledge of tax planning, company, partnership, intellectual property, trusts and insolvency law. This enables him to advise clients with a good appreciation of the wider issues relevant to them and what is expected of a tax adviser.

Julian Hickey is the General Editor of the Law and Regulation of Tax Advisers published by Bloomsbury which provides practical advice on the following key areas relating to the liability and regulation of tax advisers:

• Tax Planning v. Avoidance v. the GAAR (General Anti Avoidance Rule): the current climate
• Professional Standards and facilitation and promotion of tax avoidance
• Professional Conduct in relation to Taxation (PCRT)
• Professional Bodies and applicable Standards: ACCA, AAT, ATT, CIOT, STEP
• Integrity, objectivity, professional competence and due care, confidentiality and professional behaviour
• Tax planning: the client-specific standard
• Tax planning: the lawful standard
• Tax planning: the disclosure and transparency standard
• Tax planning: (i) contrary to the clear intention of Parliament in enacting relevant legislation; and/or (ii) highly artificial or highly contrived arrangements
• Solicitors Regulatory Authority
• Bar Standards Board
• Facilitation of Tax evasion offences

Regulatory Obligations Of Tax Professionals

• Disclosure of Tax Avoidance Schemes (DOTAS) / overview / hallmarks / who is a promoter? / who is an introducer? / Finance Act 2004
• Disclosure of VAT Avoidance Schemes: Schedule 11A to the VAT Act 1994 and Schedule 2 to the Finance Act 2004
• Promoters of Tax Avoidance Schemes (POTAS)
• Monitoring notices

Liability Under Contract For Tax Professionals

• Engagement letter: scope and interpretation
• Express and other implied terms (The Supply of Goods and Services Act 1982, s.13)
• Breach of terms
• Causation
• Loss
• Limitation

Liability for negligence for Tax Professionals

• Duty of care
• Concurrent duty of care in tort
• Standard of care
• Breach of duty
• Failure to warn of specific risks
• Causation: did the breach cause the loss? Did the claimants rely on the advice which was given?
• Loss
• Limitation

Defences for Tax Professionals

• Contributory negligence
• Are the claims statute barred? Section 2 and section 14A of the Limitation Act
• Is any breach excluded by terms of business? Unfair Contract Terms Act

Privilege: tax advice and disclosure

• Three Rivers District Council v Governor of the Bank of England (No 6) [2004] 3 WLR 1274
• Lawyers
• Accountants: R (on the application of Prudential plc and another) v Special Commissioner of Income Tax

Criminal Investigations into the conduct of Tax Professionals

• Criminal investigation and prosecution
• Search warrants and productions orders: Police and Criminal Evidence Act 1984
• Role of the adviser
• Dealing with a dawn raid and interviews

Tax Evasion Facilitation Offences and Anti-Money Laundering

• Failure to prevent the facilitation of evasion: Criminal Finances Act 2017
• Facilitation of UK tax evasion
• Facilitation of evasion of non-UK taxes
• Meaning of ‘associated person’
• Defence – reasonable prevention procedures: what are they?
• HMRC guidance on tax evasion
• Anti-Money Laundering