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Tax: can you avoid, but not evade?

Posted by Crunch Accountants on May 20th, 2020 | Tax

HMRC | Tax: why can you avoid, but not evade? | Crunch

Everyone knows it’s legal to evade tax but completely illegal to avoid it, right? Wrong. What I meant to say is that it’s legal to avoid tax but illegal to evade it. Confused? You’re not the only one.

Putting aside the moral arguments and looking purely at what you can be jailed for doing, tax evasion is the naughty one. Tax avoidance is the practice of reducing your tax bill through apparently legal, albeit often controversial, methods.

Let’s take a closer look at the difference.

The dictionary definitions

First stop: the Oxford English Dictionary.

Avoid: 1. keep away or refrain from. 2. prevent from doing or happening.

Evade: 1. escape or avoid. 2. avoid giving a direct answer to (a question) 3. escape paying (tax duty).

So, there really isn’t a huge difference in definitions (apart from the very last point!), but it’s the idea of escape that’s crucial. Assuming you owe tax, you can’t legally escape paying it. But you can legally avoid certain tax liabilities through clever financial planning, you must always ensure that the steps you take don’t fall foul of HMRC. Remember the golden rule: If something looks too good to be true, it probably is!

The government’s view

Successive governments have made a point of tackling tax avoidance and have been actively closing loopholes and schemes which take advantage of tax rules. This has included schemes used by famous footballers and musicians,  as well as large umbrella operations targeting contractors by offering greater take-home pay through “creative” (illegal) use of expense claims.

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But is tax evasion illegal? Is tax avoidance illegal? Does anyone even know?

HMRC has a great deal of online information about tax avoidance schemes and genuinely wants to help people getting trapped in them by unscrupulous advisers. You can see a full list of schemes HMRC is currently investigating here.

Here’s how HMRC describes tax avoidance: “Tax avoidance involves bending the tax rules to try to gain a tax advantage that was never intended. It usually involves contrived transactions that serve no real purpose other than to artificially reduce the amount of tax that someone has to pay. It is not the same as effective tax planning but is often promoted as such.”

Pretty clear then. Effective tax planning, such as; claiming all your allowable expenses, careful planning and timing of salaries, dividends, capital purchases etc, using all the tax allowances and tax breaks available is fine. But trying to gain an unintended advantage is not.

There’s also been a move by HMRC to clamp down on so-called disguised remuneration schemes,  that claim to avoid the need to pay Income Tax and National Insurance contributions. They normally involve a loan or other payment from a third-party which is unlikely to ever be repaid. These schemes have been targeted by HMRC using something called the Loan Charge, which was introduced to tackle the use of disguised remuneration schemes and came into effect on 5th April 2019. The charge applies to loans made after and including 9th December 2010, if they were still outstanding on 5th April 2019.

Are avoiding and evading both wrong?

The media narrative often presents evasion and avoidance as one and the same, and equally wrong. Many commentators disagree with this notion, including Conservative MP John Redwood who defined tax avoidance as a legitimate and encouraged way of reducing your tax liability. He referred to it as “another name for tax incentives” which could include the following:

  • Using a contractor to do work on your home who’s below the VAT registration threshold to avoid VAT charges
  • Buying a larger home than you need so more of your total investment is covered by the CGT relief on first homes
  • Investing as much through National Savings and ISAs as you can afford to avoid tax on investments
  • Going by subsidised bus rather than car to avoid fuel duty
  • Buying larger items that attract VAT just before a VAT rise
  • Homebrewing to avoid various liquor duties
  • Playing the lottery instead of betting to avoid gambling taxes.

According to this perspective, tax avoidance isn’t just technically lawful but morally right. However, issues regarding offshore accounting processes (such as Employee Benefit Trusts) were also (at the time) legally acceptable – but are they within the spirit of the law? For this reason, former Permanent Secretary for Tax, Dave Hartnett, offers a more useful definition of what constitutes tax avoidance:

“Evasion is about dishonesty and concealment. Avoidance is about using the tax system in a way it was never intended. Lots of people see it as reprehensible, but it’s not dishonest activity. There’s a difference.”

So what’s the difference?

So, the key difference between evasion and avoidance is the issue of honesty. If you’re avoiding tax, you can be clear on what you’re doing to lower your tax bill (i.e. “here’s what I’m doing to lower my tax bill, and this is why it’s legal”), but on issues of evasion, you depend on subterfuge to get away with decreasing your tax liability.

Evasion, then, is a matter of clear criminal wrongdoing such as non-declaration of earnings or claiming deductions for expenses that weren’t incurred or are not legally deductible. Tax avoidance is the exploitation of loopholes which, though legal, are morally questionable. All those tax saving methods described by John Redwood can be categorised as basic tax planning, but are essentially the same as many common tax avoidance techniques.

With all that said, the next time you hear the terms ‘avoidance’ and ‘evasion’ being casually mentioned, who knows what they might mean – it seems to depend on the individual’s interpretation.

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