The Advertising Standards Agency (ASA) agreed with the complainants HM Revenue and Customs and a tax lawyer that the promises made on a US newspaper’s website placed by CDP Tax and Wealth Ltd, trading as Fiducia Wealth & Tax, were misleading.
The claims
The advert on the The Washington Post website, stated “Save 60% On Stamp Duty … £350k Minimum Purchase Value” and linked to the text on Fiducia’s website.
“We do not promote nor advocate stamp duty avoidance schemes,” their website read. “Instead we seek to efficiently plan our clients’ property tax affairs by only utilising government approved statutory tax rules that are contained within the tax legislation, so that our clients only pay the tax intended by Parliament.”
Text accessed via the link “Stamp Duty Land Tax” read: “At Fiducia, we tailor our stamp duty land tax (SDLT) strategies to each individual property purchase and client, making sure that every regulation is fully catered for along the way”.
Under the sub-heading “Our plans” text stated: “Don’t require any input from your vendor, don’t require you to notify HMRC and reduce delays in the conveyancing process overall”.
Claims on Fiducia’s ‘Stamp Duty Land Tax FAQ page’ stated: “Can I be confident that there won’t be issues later on?”. A dropdown response stated: “The implementation of your tax planning will be carried by a number of SRA-regulated (Solicitors Regulation Authority) firms, and one of the cornerstones of their regulation is that the firms must act in your best interests at all times”.
Optional tax
HMRC, and the other complainant, took issue with the scheme which they argued made SDLT look “optional” and “misleadingly implied that their arrangements did no more than use statutory reliefs from SDLT for the purpose for which they were designed”.
The Revenue argued the advert was misleading, because there were detailed rules for determining whether an SDLT scheme was notifiable to HMRC (under the Disclosure of Tax Avoidance Schemes (DOTAS)), only the Tax Tribunals and higher Courts could decide if HMRC should be notified and it was
HMRC’s view that the sorts of arrangements promoted in the ads were of a type that could be caught by DOTAS.
The tax authority also argued that Fiducia were misleading individuals into thinking the firm had implied endorsement from the SRA, which has issued a warning in relation to SDLT schemes.
The advert also was said to have misled by omitting to make clear that there might be HMRC challenge to the arrangement, under the General Anti Abuse Rule (GAAR).
Individually assessed and not vulnerable to challenge
Defending the adverts Fiducia said they considered that the emphasis in the claim was “schemes”. They said their clients’ circumstances were individually assessed by tax counsel, before appropriate recommendations were made. They gave examples: counsel might conclude that no actions were appropriate, or might make a series of actions which were intended to manage a client’s potential tax liabilities, regardless of whether the tax was classified as, for example, SDLT, Capital Gains Tax, Corporation Tax and so on. They stated they did not control or guide counsel.
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