Offshore Income remittance with an Offshore Credit Card

The Lawyer global offshore report

The UK Government's more rigorous approach to tackling fraud has
created unexpected challenges for offshore advisers. Helen Ratcliffe reports

The National Audit Office's February 2003 report 'Tackling Fraud Against the
Inland Revenue' noted that offshore accounts and structures present a "major
threat of serious fraud". Since then the UK has seen a raft of new
information-gathering approaches and a more robust approach to some
longstanding reporting requirements.

HM Revenue & Customs' (HMRC) aim is clear: increased intelligence will throw
up increased information about offshore structures and funds; disclose
unreported distributions, remittances and profits; increase the number of
investigations into taxpayers' affairs; and increase the tax take. The
Government envisages that the investigation of offshore accounts and
structures can generate an additional ё1.6bn in revenue. It may well provide
ammunition for the longstanding domicile and residence review.

But its width means that it may be a blunt instrument for distinguishing
fraud from structures and funds which are run properly and legitimately.
Advisers to international clients, offshore trustees and managers, then,
need to be sure that they are fully in the picture about their clients and
that all concerned understand the client's UK tax profile and reporting
requirements in the UK (and other jurisdictions).

Undisclosed offshore bank accounts

The new Offshore Fraud Projects Team (OFPT) is seeking information from
financial institutions about their customers and the movement of funds
offshore. In particular, it is understood that the OFPT is approaching UK
banks for information in respect of customers for whom they have moved funds
offshore using sundry parties or suspense accounts, thereby bypassing these
individuals' UK bank accounts.

As part of a pilot exercise designed to find the most effective way of
flushing out undisclosed offshore funds, HMRC's Cross-Cutting Policy Unit is
writing to taxpayers where it has reason to suspect that the individual in
question has undisclosed offshore bank accounts to ask why there is no tax
liability from their bank accounts. The letters require the recipient to
respond within 30 days. The letters apparently do not constitute an enquiry
under Section 9 of the Taxes Management Act 1970, but if no response is
received within the specified time, then the Inland Revenue (the Revenue) is
likely to open an investigation.

Offshore credit and debit cards

HMRC has undertaken a project to identify UK taxpayers who have credit cards
or debit cards issued by offshore banks, examining the use of those cards in
the UK and extracting details from the credit card companies themselves.

While it is true that in some cases offshore cards may indicate fraud, many
UK-resident and non-UK-domiciled individuals legitimately limit their UK tax
liability by having cards from more than one jurisdiction to ensure that
they do not remit foreign income and gains to the UK. Inadvertent payments
on the 'wrong' card should be reported and, if necessary, advisers should
check statements.═

This investigation may also be relevant for individuals who claim that they
are non-UK resident because they are only in the UK for a relatively small
part of each year.═ The Revenue might use the credit card information to
garner more detail on exactly when they are in the UK and whether the
taxpayer's records are accurate.

European assistance

The EU Savings Directive, which came into effect on 1 July 2005, requires
certain information to be exchanged between national tax authorities to
combat tax evasion by individuals on cross-border savings income.

The new rules stipulate that UK paying agents must report to HMRC any
payments of savings income they make to individuals resident in a prescribed
territory other than the UK (currently the 25 EU member states as well as
Aruba, the British Virgin Islands, Gibraltar, Guernsey, the Isle of Man,
Jersey, Montserrat and Netherlands Antilles). HMRC will then report this
savings income to the individuals' own tax authorities. Income paid to
individuals as beneficiaries of estates and some types of trusts will also
need to be reported. Paying agents in the other prescribed territories will
be making similar reports to their own tax authorities, which will pass
information on in the same manner, thereby establishing a complete network.

The directive has not changed the tax position, but it will enable HMRC to
compare the information it receives from the tax authorities of the other
countries with that contained in an individual's tax return. This means that
any past or future errors are likely to come to light.

Section 218, Inheritance Tax Act 1984

Section 218 imposes an obligation on any person who, in the course of a
trade or profession (other than that of barrister), has been concerned with
the making of a settlement by a UK-domiciled settler with non-UK-resident
trustees to give details about the settler and trustees to HMRC within three
months of making the settlement.

It now seems that HMRC is taking the view that the words 'concerned with'
are broad enough to include persons (legal persons and individuals) through
whom funds are transmitted, and that Section 218 does apply to non-UK
persons.

In some instances, HMRC has been writing to UK parent companies to enquire
as to whether their offshore subsidiaries have made the appropriate returns
under Section 218. A number of non-UK financial institutions have provided
details of previously unreported trusts. HMRC is thus building up a greater
picture of offshore trusts.

Forms 50(FS)

Forms 50(FS) are issued by the Centre for Non-Residents and ask for
information about capital gains, offshore income gains and distributions to
beneficiaries. Care is needed before a decision not to comply is taken.
Where the Revenue has been unsuccessful in extracting information from the
trustees of offshore trusts, it will generally put pressure on UK-resident
settlers and/or beneficiaries to provide that information and may back up
initial requests with the penalty regime, even though the settler or
beneficiary may have no control over the production of the information
needed.

HMRC's intelligence-gathering efforts will doubtless reveal some crude tax
planning and tax ignorance. But at the same time, none of this should
undermine the position of the client in a well-run offshore structure where
advice is taken and implemented properly. For the correctly advised client,
the extent and limits of compliance will be understood; they will no doubt
be reviewed and discussed as necessary, and any HMRC enquiries received will
be dealt with effectively.

Helen Ratcliffe is a partner and Sophie St John a solicitor, both at Bircham
Dyson Bell

Section: In-Depth Analysis
Date: 7-Nov-2005
Author: Helen Ratcliffe
Source: TheLawyer.com