I’ve been looking at the DOTAS guidance changes (updated 14 May 2025, see bit.ly/DOTAS-guidance), and I thought it might be interesting to share an observation that HMRC’s guidance contains a quote from a case that is not actually found in the decision.
Disclosure of tax avoidance schemes: guidance at paragraph 3.3 (‘Who is an introducer’) states:
‘The tribunal in Revenue and Customs v AML Tax UK Ltd and Denmedical UK Ltd (2022 UKFTT 174 154), confirmed that:
“it is not the subjective view of a person that matters but the facts of the case that will determine if a person is an introducer or a promoter”.’
Except that’s not what para [154] of the judgment – or indeed any part of the judgment – said. Paragraph [154] cited in the guidance actually reads as follows:
‘Mr Mullan also makes the point that by providing for a category of entity known as an “introducer”, Parliament recognises that there may be entities involved in the arrangements which do less than is required for them to be defined as a promoter, and so it is possible to be involved as such without being a promoter. And in the context of this appeal, AML was doing no more than introducers, generally, do, and in acting in the way that it did, as a conduit, it was if anything acting as introducer. I agree with the point that it is a question of fact whether the activities undertaken by AML were those of a promoter or an introducer. And it is the facts in this appeal which matter. There may be occasions where entities such as financial advisers or accountants who profess to be introducers, cross the line and in fact act as promoters. And in those circumstances, they may have a disclosure obligation. If this brings within the disclosure net entities which Mr Mullan and Mr Lancaster think should not be so caught, then that is no reason why AML should not be caught if in fact they were promoting notifiable arrangements.’
I’m guessing that the statement in HMRC’s guidance should just have been formatted as a paragraph, rather than as a quote, and perhaps this was changed before publication by a non-technical editor. The summary given by HMRC is correct and this seems to be an innocent error, so perhaps no harm has been done. However, I’m going to be more critical when looking at HMRC guidance that involves case law in future, rather than taking it as read that a quote is accurate.
Lynne Poyser, Tolley
Note: since this article was written, HMRC's guidance has been updated further to remove the quotation marks. It now reads: "The tribunal in Revenue and Customs v AML Tax UK Ltd and Denmedical UK Ltd (2022 UKFTT 174 154), confirmed that it is not the subjective view of a person that matters but the facts of the case that will determine if a person is an introducer or a promoter."
I’ve been looking at the DOTAS guidance changes (updated 14 May 2025, see bit.ly/DOTAS-guidance), and I thought it might be interesting to share an observation that HMRC’s guidance contains a quote from a case that is not actually found in the decision.
Disclosure of tax avoidance schemes: guidance at paragraph 3.3 (‘Who is an introducer’) states:
‘The tribunal in Revenue and Customs v AML Tax UK Ltd and Denmedical UK Ltd (2022 UKFTT 174 154), confirmed that:
“it is not the subjective view of a person that matters but the facts of the case that will determine if a person is an introducer or a promoter”.’
Except that’s not what para [154] of the judgment – or indeed any part of the judgment – said. Paragraph [154] cited in the guidance actually reads as follows:
‘Mr Mullan also makes the point that by providing for a category of entity known as an “introducer”, Parliament recognises that there may be entities involved in the arrangements which do less than is required for them to be defined as a promoter, and so it is possible to be involved as such without being a promoter. And in the context of this appeal, AML was doing no more than introducers, generally, do, and in acting in the way that it did, as a conduit, it was if anything acting as introducer. I agree with the point that it is a question of fact whether the activities undertaken by AML were those of a promoter or an introducer. And it is the facts in this appeal which matter. There may be occasions where entities such as financial advisers or accountants who profess to be introducers, cross the line and in fact act as promoters. And in those circumstances, they may have a disclosure obligation. If this brings within the disclosure net entities which Mr Mullan and Mr Lancaster think should not be so caught, then that is no reason why AML should not be caught if in fact they were promoting notifiable arrangements.’
I’m guessing that the statement in HMRC’s guidance should just have been formatted as a paragraph, rather than as a quote, and perhaps this was changed before publication by a non-technical editor. The summary given by HMRC is correct and this seems to be an innocent error, so perhaps no harm has been done. However, I’m going to be more critical when looking at HMRC guidance that involves case law in future, rather than taking it as read that a quote is accurate.
Lynne Poyser, Tolley
Note: since this article was written, HMRC's guidance has been updated further to remove the quotation marks. It now reads: "The tribunal in Revenue and Customs v AML Tax UK Ltd and Denmedical UK Ltd (2022 UKFTT 174 154), confirmed that it is not the subjective view of a person that matters but the facts of the case that will determine if a person is an introducer or a promoter."
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