On 2nd January, a blog post from Corker Bining that cautions that, despite the changes in the law of disclosure engendered by the ENRC case, it appears that the policy of the SFO is that whenever a company approaches it with a self-report (with a view to seeking a deferred prosecution agreement or DPA) and seeks approval to continue its internal investigation, the SFO demands that any forthcoming significant witness interview to be conducted by its solicitors should be audio recorded and the recording thereafter promptly disclosed to it. This, it says, neatly sidesteps potential objections concerned with the lawyer’s notes disclosing their musings or, as US attorneys claim, their “mental impressions” of the witness which could now since the Court of Appeal’s ENRC judgment be covered by a valid assertion of privilege. If the company objects to this measure, the SFO can adduce the judgment in R (AL) v SFO as justification. The blog comments on the effects this is likely to have on such internal inquiries – how the questions are asked (if asked at all?), and/or how the employee answers (or answers at all). It also warns that audio recordings of this kind have the potential to effectively destroy a suspect’s right of silence, and they would not have been cautioned at the start of the interview – and may well have been instructed by the employer to co-operate, and face disciplinary action of they do not.
On 2nd January, Greenberg Traurig published an article on the new offences introduced by 2017 Act) which, although widely publicised in the months leading up to its commencement, it says have received little attention since from commentators and, seemingly, the enforcement authorities. The new offences target criminalising a corporate entity or partnership’s (broadly, a ‘relevant body’) failure to prevent the facilitation of tax evasion by persons acting for or on behalf of it, as an employee, agent, or a person performing services for or on behalf of the company. It points out that a complete statutory defence exists where prevention procedures were in place. The government has produced “Tackling Tax Evasion”, guidance which includes 6 ‘guiding principles’ to inform facilitation-prevention procedures. It also looks at what could amount to “facilitation”. It points out that since these provisions came into force in September 2017, neither the SFO nor the CPS has prosecuted any organisations for either offence.
The guidance is available at –
The FBI has published an advisory booklet which explains what a “money mule” is, the complicity spectrum, indicators, potential consequences, and how to protect oneself. This follows what the FBI has seen as an increase in the use of witting or unwitting individuals’ accounts to launder the proceeds of crime. The FBI defines a money mule as a person who transfers illegally acquired money on behalf of or at the direction of another. Money mules often receive a commission for the service or provide assistance because they believe they have a trusting or romantic relationship with the individual who is asking for help.
1st January 2019
WHAT THE WAYFAIR DECISION MEANS TO CANADIAN (AND OTHER FOREIGN) COMPANIES SELLING IN THE US
On 27th December, an article from Collins Barrow National Incorporated on the recent ruling of the Supreme Court of the US in South Dakota v. Wayfair Inc which overturned decades of judicial precedents and confirmed that physical nexus is no longer required for a state to enforce sales tax collection, but that the concept of economic nexus should be considered as a reasonable basis. It says that, as a result, to date, more than 39 states have enacted or will enact new laws with economic nexus threshold tests that are similar (although not identical) to South Dakota’s. The article says that for a Canadian company selling into the US, the situation creates a whole new level of risk that must be assessed, and provides recommendations for traders.
AEO STATUS IN SWITZERLAND
On 27th December, PrimeTax AG published an article explaining that Authorised Economic Operation status is available in Switzerland, but while there are 3 types of authorisation are possible in the EU, Switzerland only has one AEO status (since 2011) which is comparable to the AEOS certificate (security and safety) of the EU. An AEOC certificate (for customs simplification), especially as a basis for further authorisations as required by the EU, is not necessary in Switzerland. Looking into the future, the AEO status will become established as the standard in global trade, and sooner or later, it will no longer be possible for internationally active companies to meet the requirements without an AEO certificate.
UNIVERSITY OF MISSISSIPPI TO RETURN MOST OF $400,000 GIVEN BY PONZI CONVICT
KYC 360 on 1st January reported that the University has agreed to return most of the $400,000 its athletic foundation was given by Arthur Lamar Adams, a businessman who pleaded guilty to a $100 million Ponzi scheme.
FAMOUS FORGED PAINTINGS EXPECTED TO FETCH THOUSANDS AT LICHFIELD AUCTION
The Express & Star on 1st January reported that paintings by Staffordshire-based John Myatt, who was imprisoned in 1999 for his part in what was christened the 20th Century’s biggest contemporary art fraud, are part of a specialist pictures sale at The Lichfield Auction Centre. Others are by John Anderson – another Staffordshire artist who also paints in the style of 20th Century masters, with copies of works by famous masters including Matisse, Degas, Monet, Giacometti, Henri Rouseau and LS Lowry.
Kenneth Rijock in his blog reports that on January 27th all but 2 of Europe’s central banks will cease printing the €500 note, and the other 2, Germany and Austria, will stop on April 26th, according to reports. He says that one survey found that a huge percentage of the notes were in Spain, in the hands of Russian organised crime syndicates. It will remain currency of the realm (legal tender) indefinitely, but will no longer be printed, like the $500, which was last printed in 1945.