Disciplinary orders round up February 2019
AccountingWEB rounds up two disciplinary cases where the accountant was excluded: the first failed to pay HMRC £1.5m in tax, while the other didn’t hold a practising certificate but still engaged in public practice.
As always, the Accountants National Complaint Services’ Chris Cope gives his take and explains what accountants can learn from these cases.
The ICAEW has excluded the co-director of four companies, who the Secretary of State for Business (BEIS) disqualified in December 2018 from acting as a director for seven years after his companies collectively failed to pay nearly £1.5m in tax.
Kenneth Munn, who represented himself at the ICAEW disciplinary tribunal, denied the complaint despite the disqualification, claiming he had no alternative to accepting the disqualification undertaking as litigation would have brought with it crippling financial consequences.
The secretary of state brought the ‘matters of unfitness’ against Munn after one of his companies failed to file its corporation tax return for the year ended 30 April 2004.
The BEIS investigation also found Munn responsible for only paying £18,620 in corporation tax for the same company, when he knew the true amount due by 31 January 2005 was £201,348.
The complaint also found Munn and his co-director for all four companies failed to pay PAYE, NIC and student loan deduction contributions, which resulted in an estimated liability to HMRC of nearly £1.5m. The four companies have since been liquidated.
Munn contested the secretary of state’s proceedings and the figures of alleged losses by HMRC, blaming bad legal advice for accepting the undertaking. He also told the tribunal that he had no choice but to accept the undertaking because he could not afford the risks that litigation brought.
However, the tribunal found Munn’s change of heart about giving the undertaking “an expression of regret”, rather than a defence.
Furthermore, the ICAEW tribunal accepted that the undertaking was conclusive evidence of Munn’s misconduct. Secondly, the tribunal noted that it had no power to “go behind this conclusive evidence” and revisit the circumstances.
With the undertaking still in full force, the tribunal noted that “there is no evidence that the defendant has ever taken steps to revoke his undertaking”.
Munn was disqualified as a director for seven years. The ICAEW tribunal took this into account when considering an appropriate sanction. It also took account of an absence of insight or of any remorse.
In addition to the length of the disqualification period, the tribunal could not overlook the size of the companies’ financial liabilities to HMRC or the impression Munn gave that his circumstances were the fault of others.
The tribunal excluded Munn and ordered that he pay costs of £5,000.
Chris Cope, director and solicitor of Accountants National Complaint Services Limited, said:
|I am astonished that this case did not result in fraud charges against Mr Munn. The Revenue has lost nearly £1.5m. That’s money which could have been spent on public services. It’s money that should have been paid. Is there any argument which would rebut the suggestion of fraudulent activity?It’s all very well blaming the lawyers. Isn’t it always the case that it’s someone else’s fault? Of course, I accept that fighting the establishment can be fearfully expensive and few can afford it. But if the director is entirely innocent (as Mr Munn suggests), could he not, as a chartered accountant, assemble his evidence to convince the authorities that they’ve simply got it wrong?
I am also bewildered that the disqualification was for seven years. The maximum is 15.
Lack of practising certificate
Darren Hutchinson had never held a practising certificate but as detailed in a February 2019 ACCA disciplinary tribunal decision, that didn’t stop him from describing his firm as chartered accountants and preparing company accounts.
The ACCA Disciplinary Committee excluded Hutchinson after considering evidence of meetings with clients and emails showing him communicating with clients regarding their company accounts which confirmed that he had engaged in public practice for a number of years with two different firms.
The committee heard how Hutchinson had ignored the global practising regulations that prohibit members from carrying out public practice without a practising certificate.
Throughout the investigation, Hutchinson never suggested he had a practising certificate. The ACCA provided the committee with evidence that showed Hutchinson had:
- prepared a client’s limited company accounts for the year ended 28 Feb 2016
- attached an invoice to a client’s email in April 2017 relating to the client’s company accounts he had prepared for the year-ended Feb 2017
- sent an email in June 2017 where he held himself available to prepare dormant accounts
- had a meeting with a client in November 2017 when he discussed the client’s accounts for the year ended 28 February 2017
- when filing the subsequent documents with Companies House, described himself as a certified accountant
But the case against Hutchinson was further evidenced by reference to his firm’s website, where between May 2016 and July 2016 Hutchinson Moss described itself as “accountants and business consultants”, alongside providing tax services.
Hutchinson also described himself as an “accountant” when he accepted the appointment as a director of Hutchinson Moss in August 2013 and on the firm’s tax return in October 2014, and again when he was appointed director of Hutchinson Moss Accountants in 2016.
The ACCA argued that by holding 49% of Hutchinson Moss’ shareholding between August 2013 and November 2016, Hutchinson was effectively put in the position of principal. The committee did not accept that being a minority shareholder in a limited company made him a principal. What, though, made Hutchinson a principal was his directorship.
Engaging in public practice without a practising certificate would have been enough to justify a severe reprimand from the committee, but this was not an isolated complaint. The committee also considered an allegation that Hutchinson failed to respond to a client’s email and telephone requests for a copy of their latest annual returns.
Hutchinson’s “perfunctory” response to the ACCA’s investigation reinforced the committee’s decision to exclude him and order that he pay costs of £8,000.
Chris Cope, director/solicitor of Accountants’ Defence & Advisory Services Ltd, said:
|Mr Hutchinson did not attend the hearing and was not represented. In view of the seriousness of the allegations, this was clearly a mistake. Can an accountant seriously be surprised if a committee imposes the ultimate sanction when he cannot be bothered to attend?
For more information about Chris Cope and the Accountants Defence & Advisory Services or to take out a membership, you can visit their website and/or phone Chris Cope 01769 580041 today.