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ONE of a new set of regulations which impacts on the waste sector more than other industries is the Criminal Finances Act 2017.


This becomes law and is in force from September this year (2017), and requires companies to have procedures in place to prevent tax evasion.


If no measures are in place, then the company cannot use the statutory defence that they have done all that is reasonable.


Imagine a situation where cash in hand is received for a load which had not been weighed, or where the waste classifi cation was wrong.


I am not suggesting this is a frequent occurrence, but when this occurs the EA can get HMRC involved. This is usually because there has been movement on a landfi ll site which was not recorded, and this could lead to the possibility of less landfi ll tax being paid than is legally due.


Every single employee involved, would be facing prosecution for facilitating tax evasion.


The eff ect of any prosecution in such circumstances could be disastrous for a company, as the penalties on off er could include the imposition of unlimited fi nes, and also potential confi scation under the POCA regime (which I have discussed in previous articles).


This is where the smaller landfi ll operator or company could


THE RIGHT SIDE OF THE LAW


Need for robust defence


Dominic McNabb is an experienced solicitor in private practice with MJP solicitors. He has over 20 years’ experience defending individuals and companies, in both criminal and regulatory matters.


YOU CAN CALL HIM DIRECTLY: 0773 3264226 - OR EMAIL: dominic.mcnabb@mjpsolicitors.co.uk


again be targeted by the EA, and the need for a robust defence and what the statute describes as “reasonable” prevention procedures, need to be put in place.


It is also quite likely any convictions obtained, could further impact on the operator via the “fi t and proper” provisions of the Environmental Protection Act 1990.


Whether the waste industry is prepared for this scenario still remains to be seen.


If you’re seeking a direct conversation and some sensible advice, I’m happy to advise. My contact details are above, if you’d like to get in touch.


Landfi ll tax exemptions


THIS month I am focusing on something that aff ects all waste operators, and that is landfi ll tax.


Sadly, like all taxes it is diffi cult to avoid, and the preferable approach from operators is compliance. But that is not to say there is no way of making the exposure tax liability more effi cient.


Landfi ll tax is the tax paid by landfi ll sites, and their tax liability is usually passed on through charges to businesses using landfi ll sites.


For the main, most general and construction waste will attract landfi ll tax set at two rates.


If you then pass on the cost of your landfi ll tax to your customer as part of your charges, the amount of your collection service will be aff ected by the rate of landfi ll tax you have to pay.


The amount of tax levied is calculated according to the weight of material disposed, and if this waste is either active or inactive waste.


Inactivate waste would be classed as materials such as building fabric, brick, clay, gravel and some earth movement works. Active waste would be all forms of waste such as wood, piping or plastics.


The cost of landfi ll tax increases annually, and is normally in accordance with RPI . There are ways to make the payment of this tax more effi cient, and it is worth considering the following:


• Applying the correct output waste code, so as to avoid waste attracting landfi ll tax at the higher rate


• Avoidance of double taxation in such instances where a ‘load’ includes mixed waste such as bricks and concrete, mixed with small amounts of wood and plastics


If the ‘load’ of mixed waste contains material, some of which has already been subject to tax, then tax is only due on the material that has yet to be taxed.


22 SHM November, 2017


Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was employed by the Environment Agency as a lawyer, and heads a practice on regulatory, environmental and planning issues.


Depending on the size of the operation, consider LOI testing. Wastes with less than 10% LOI qualify for a lower rate of landfi ll tax, but there is a transitional period for wastes with an LOI up to 15%.


Operators can reduce the cost of landfi ll tax by making payment to the landfi ll tax credit scheme, if the use of such schemes if made available to them by the Landfi ll site. Certain waste activities are exempt from tax. Guidance about such activities can be obtained from the GOV.UK website (an obvious exemption is topsoil).


It is up to the operators to decide what is active waste and inactive waste, and to apply the correct output code. Failure to do so correctly may not only result in higher landfi ll tax, but also prosecution.


Waste operators would be assisted in referring to the UK Government website and in particular, exercise notice LFT1 - a general guidance to landfi ll tax.


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