22 August 2014

Liechtenstein Disclosure Facility (LDF) - HMRC restricts favourable terms


Switzerland

On 14 August 2014 HM Revenue & Customs (‘HMRC’) announced a number of changes to the terms of the LDF affecting the ability of certain taxpayers who are not already registered to benefit fully from the advantageous terms.

Since its introduction in 2009, the LDF has offered UK taxpayers the opportunity to regularise their tax affairs on favourable terms including a reduced assessment period (back to 6 April 1999 instead of the normal 20 year period), the ability to apply a single composite rate of 40% or 50% depending on the tax year (enabling taxpayers to avoid paying inheritance tax that would otherwise be due), a generous penalty regime and immunity from prosecution. Since the launch of the LDF in 2009, more than 5,700 individuals have made disclosures and the facility has raised over £1bn.

The LDF was originally intended to encourage UK taxpayers with undisclosed assets in offshore accounts to regularise their tax affairs. The hope was that individuals whose offshore assets would otherwise escape the attention of HMRC would voluntarily come forward to make a disclosure. The rules relating to the eligibility of taxpayers to register for the LDF and benefit fully from its terms were relatively relaxed, with only individuals who were involved in an ongoing ‘Code of Practice 9 Investigation’, those who were under criminal investigation for a tax matter and those whose assets comprised ‘criminal property’ being prevented from participating. Otherwise, in most cases and providing the offshore account was not opened through a UK branch or agency, all the taxpayer had to do was open an account in Liechtenstein and the full terms of the facility were available to him.

More recently, UK taxpayers who have not previously held offshore assets and/or who have been placed under enquiry by HMRC in relation to UK assets have been registering for the LDF in order to settle the matter under its more favourable terms. In particular, HMRC has become aware of an increase in LDF disclosures where UK taxpayers are seeking to avoid tax investigations into much publicised tax avoidance schemes such as those involving employee benefit trusts.

HMRC has now responded to this growing trend by limiting the eligibility of certain individuals to register for the LDF and benefit from its favourable terms. As of 14 August 2014, if an individual’s disclosure is not substantially connected to offshore assets that were held by him before 1 September 2009 and/or to assets already known to HMRC, the full terms of the LDF will not be available. Similarly, if an individual is the subject of an HMRC enquiry he will have only three months (from the date of receipt of notice of the enquiry) to register for the LDF before becoming ineligible to benefit fully from the favourable terms of the LDF.

Those caught by the new provisions will still be able to register and make a disclosure under the LDF but the only benefit they will secure is immunity from criminal prosecution.

Although the changes described above have received wide coverage in the UK press we anticipate that they will not be so important for clients of banks, intermediaries and Withers LLP in Switzerland (as most have held offshore assets for many years). However, the fact that the changes were announced with very little warning and without the usual consultation with professional bodies underlines the temporary nature of the benefits available under disclosure facilities.

Those UK taxpayers who are considering making a disclosure under the LDF should act now in order to secure the significant benefits of the LDF before they are restricted any further. It is also important to note that the LDF closes altogether on 5 April 2016.

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