Too many marginal tax products are sold to too many unsuspecting people

Hot on the heels of the Taxation editorial to which I referred yesterday (The beginning of the end for structured tax avoidance schemes?) it seems the world is changing faster than I had anticipated. The following comments are included in a retrospective piece written by Stephen Herring in the 1,000th issue of the Tax Journal:

"I am disappointed that at some time in the early 1990s certain parts of the tax profession 'sold out' to the sales teams seeking to 'roll out' tax 'products/solutions/ideas' across the client base with little regard to their suitability."

"I agree that some products may succeed in the courts and some clients are capable of implementing and willing to defend them as far as is needed but what I'm saying is that too many marginal tax products are sold to too many unsuspecting companies and individuals."

Stephen concludes his piece with the following observations:

"I suspect that before too long, HMRC will come to the conclusion that the only way to restrict the marketing of artificial tax arrangements is to copy the stance adopted by the IRS in the US and seek criminal penalties in some situations to draw a line in the sand between acceptable, even if aggressive, tax planning and purely artificial schemes. This would be a hugely disappointing outcome but one which I consider at the moment to be almost inevitable"

Stephen is a tax partner with BDO LLP and has had a variety of managing partner and other management roles in leading accounting firms over the last 20 years. So he is well experienced in such matters.

As it happens Stephen shared such views with me during a recent BDO alumni party. I did not expect to see them in print. I know a number of other senior tax practitioners who would probably agree with the above sentiments. And I expect to see more serious commentators and practitioners publish their views now that Taxation and Tax Journal have opened wide the door that, I like to think, I unlocked a couple of years back when I explained Why I gave up giving tax advice.

I tend to suspect that we are more likely to see a draft General Anti-Avoidance Rule (GAAR) emerging in the not too distant future. However the developments I noted in my piece about the Vantis tax advisers facing charges of “cheating" re a tax scheme are not a million miles away from Stephen's view of the near future. And of course he wrote his piece well before that latest news leaked out.

Before today I felt almost like a lone voice in the tax profession. Now within 24 hours we have a senior tax partner at one of the largest firms of accountants in the country and also the Editor of the leading weekly tax publication in the country, both commenting publicly that some tax schemes are indefensible even if technically legal. The tax world is indeed moving quickly. Hold on tight. It'll be a rocky ride!