CH176160 - Sanctionable conduct by tax advisers: who is a tax adviser

A tax adviser is defined in the legislation as an organisation or an individual who, in the course of a business, assists other persons with their tax affairs. A tax adviser can be based in the UK or overseas.

The assistance that the tax adviser provides must be given in the course of business. This means that free advice, lectures and work undertaken voluntarily and without payment (‘pro bono’ work) by tax advisers are not caught, provided these are not done to promote a business or otherwise in the course of a business. For individuals, “in the course of business” includes where they are a sole trader, a partner, and where they work for an organisation.

Assistance with a person’s tax affairs includes:

  • advising a person in relation to tax,
  • acting or purporting to act as an agent on behalf of a person in relation to tax,
  • providing assistance with any document that we are likely to rely on to determine a person’s tax position, or
  • providing assistance for non-tax purposes, if it is provided in the knowledge that it will be, or is likely to be, used by the person in connection with the person’s tax affairs.

A person can be a tax adviser even if they, or the organisation for which they work, are appointed indirectly (for example, at the request of someone other than their client).

For example, a tax adviser may be engaged by another firm to provide specialist advice on a particular topic relating to a third party’s tax affairs.

Sometimes this guidance refers to ‘tax adviser’ and other times it simply refers to ‘person’. Different terms are used because the regime applies to tax advisers, and former tax advisers, who, at the time of the conduct in question, acted as a tax adviser. Information requests and sanctions can also apply to third party document-holders, who may have never been a tax adviser.

FA12/SCH38/PARA2 as amended

Examples

These examples show the types of people who are likely to meet, or not meet, the definition of tax adviser. Whether a person actually is a tax adviser will depend on the circumstances of the case. These lists are not exhaustive.

Examples of who is a tax adviser

  • Sole accounting or tax practitioner
  • Organisations providing accountancy or tax advice, including partnerships and companies
  • Business adviser
  • Director, partner, member, employee or contractor of an accountancy or tax practice, however the practice is constituted
  • Tax agent or tax consultant
  • Employee of a bank where that person assists another person with their tax affairs
  • Solicitor, barrister or other legal professional who assists another person with their tax affairs
  • Valuer providing valuations for tax purposes
  • Director, partner, member, employee or contractor of a ‘repayment agent’

Examples of who is not a tax adviser

  • An in-house tax professional who files tax returns on behalf of the business (including partnerships or sole traders) or group of companies for whom they work. If the employee’s actions led to an incorrect tax liability for the business, we would consider charging inaccuracy penalties on the business, see CH84530
  • A person who is providing tax advice for family members or friends where it is not in the course of their business
  • An employee of Citizens Advice and other similar organisations

FA12/SCH38/PARA2 as amended