New rules that will allow government departments to ban companies and individuals which take part in failed tax avoidance schemes from being awarded Government contracts have been unveiled by Chief Secretary to the Treasury, Danny Alexander and Minister for the Cabinet Office, Francis Maude today, Thursday 14th February.
Many large companies make massive profits from their participation in government contracts and I suspect that few tears will be spilt by taxpayers if any company is excluded from future contracts because it hasn’t being paying the ‘correct’ amount of tax on those profits. Whenever the government intervenes there are always concerns about yet more bureaucracy (especially for SMEs), the scope for subjective decision making beyond existing tax law, but it is also interesting to see how this fits as part of the wider ‘mood music’ from government and their relationship with larger companies.
The rules, which are proposed to come into effect on 1 April 2013, are outlined in draft guidance published for consultation by the Government. They will require potential suppliers to notify contracting departments of their recent tax compliance history, and specifically to tell the department if any tax return has recently been found to be incorrect as a result of:
- HMRC successfully challenging it, including under the new General Anti-Abuse Rule (GAAR); or
- a failed avoidance scheme which the supplier was involved in and which was, or should have been, notified under the Disclosure of Tax Avoidance Scheme (DOTAS) rules.
Suppliers will also be required to disclose if they have been convicted for tax related offences or have been subject to a penalty for civil fraud or evasion.
Departments will be able to disqualify any bidder meeting these criteria from the procurement process.
Following their introduction, the rules will also enable departments to include a new clause in contracts that allows them to terminate an agreement if a supplier subsequently breaches the new tax compliance obligations. The supplier will be legally obliged to tell the contracting department if their status changes after the award of the contract.
The rules have been designed to accommodate EU rules. The EU procurement directive and Public Contracts Regulations 2006 allow procuring authorities to apply tax and propriety based criteria at the selection stage. In particular, a potential contractor can be asked whether it has fulfilled all its obligations relating to the payment of taxes.
Danny Alexander said:
“The Government is clear that aggressive tax avoidance is totally unacceptable. That’s why we are closing loopholes, bringing in a new General Anti-Abuse rule, and investing hundreds of millions of pounds in additional funding to help HMRC clamp down. These new rules are another significant tool as they will enable Government departments to say no to firms bidding for Government contracts where they have been involved in failed tax avoidance.”
Francis Maude said:
“This Government is dealing with the unprecedented deficit we inherited, and that’s why it is only right we ensure that only companies which are meeting their tax obligations can win government contracts. We will continue to put value for money at the heart of our procurement practice as we drive millions of pounds of savings for the taxpayer. These new rules provide a framework that allows departments to promote tax compliance through the bidding process.”
There is a short period of consultation by the Cabinet Office on these proposals with departments and stakeholders. The draft guidance can be downloaded from the HMRC website