Double jeopardy - no penalty will apply if a person has been convicted of a criminal offence. While this is hardly a surprising revelation, it serves as a timely reminder that HMRC may elect to pursue a criminal prosecution when it identifies ESS in action. Therefore, individuals involved may wish to consider seeking immunity from criminal prosecution by making a disclosure under the CDF.
HMRC may reduce penalties in “special circumstances” and stay them, including under a compromise agreement where appropriate. “Special circumstances” specifically exclude inability to pay but do not cover anything else. This follows the treatment for penalties for incorrect returns.
There is a standard statutory right of appeal (to HMRC or the tribunal) against a penalty (including amount). The usual 30-day deadline applies for this.