Standard Terms of Business
These standard terms of business that apply to all engagements accepted. All work carried out is subject to these terms except where changes are expressly agreed in writing.
These standard terms of business are applicable to all types of entities (e.g. companies, LLPs, charities, etc). Any reference therefore to ‘director’ or ‘company’ should be interpreted as appropriate for the entity type (e.g. partner, trustee, LLP, etc).
2. Professional obligations
We are a member of ICAS and in our conduct are subject to its Code of Ethics which can be found at www.icas.com/ethics/icas-code-of-ethics. We will observe and act in accordance with the bye-laws and regulations of ICAS. We accept instructions to act for you on this basis.
Where we become aware of errors made by HM Revenue & Customs you give us authority to correct them. We will not be liable for any loss, damage or cost arising from our compliance with statutory or regulatory obligations.
3. Applicable Law
Our engagement letter, the schedule of services and our standard terms and conditions of business are governed by, and should be construed in accordance, with English law. Each party agrees that the courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it. Each party irrevocably waives any right to object to any action being brought in those Courts, to claim that the action has been brought in an inappropriate forum, or to claim that those Courts do not have jurisdiction.
If any provision in this Standard Terms of Business or any associated engagement schedules, or its application, are found to be invalid, illegal or otherwise unenforceable in any respect, the validity, legality or enforceability of any other provisions shall not in any way be affected or impaired.
4. Changes in the law
We will not accept responsibility if you act on advice previously given by us without first confirming with us that the advice is still valid in light of any change in the law or your circumstances.
We will accept no liability for losses arising from changes in the law or the interpretation thereof that occur after the date on which the advice is given.
5. The Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007
As with other professional services firms, we are required to identify our clients for the purposes of the UK anti-money laundering legislation. We may request from you, and retain, such information and documentation as we require for these purposes and/or make searches of appropriate databases.
We have a duty under the Proceeds of Crime Act 2002, s.330 to report to the National Crime Agency (NCA) if we know, or have reasonable cause to suspect, that another person is involved in money laundering. Failure on our part to make a report where we have knowledge or reasonable grounds for suspicion would constitute a criminal offence.
We are obliged by law to report any instances of money laundering to NCA without your knowledge or consent. In consequence, neither the firm’s principals nor staff may enter into any correspondence or discussions with you regarding such matters.
6. Client money
We do not hold money on client’s behalf.
7. Commissions and other benefits
In some circumstances, we may receive commissions or other benefits for introductions to other professionals or in respect of transactions that we arrange for you. Where this happens, we will notify you in writing of the amount and terms of payment. If we reduce the fees that we would otherwise charge by the amount of commission retained, we will apply the HMRC concession which allows VAT to be calculated on the net fee after deduction of commission. You consent to such commission or other benefits being retained by us or by our associates, without our, or their, being liable to account to you for any such amounts.
8. Complaints Process
We are committed to providing you with a quality service that is both efficient and effective. However, should there be any cause for complaint in relation to any aspect of our service please contact Pamela Phillips. Where your complaint relates to Pamela Phillips, you should instead please contact Tony de Jong. We agree to look into any complaint carefully and promptly and do everything reasonable to put it right. If you are still not satisfied you can refer your complaint to our professional body, The Institute of Chartered Accountants of Scotland (ICAS).
Communication between us is confidential and we shall take all reasonable steps to keep your information confidential, except where we are required to disclose it by law, by regulatory bodies, by our insurers or as part of an external peer review. Unless we are authorised by you to disclose information on your behalf, this undertaking will apply during and after this engagement.
We may, on occasion, subcontract work on your affairs to other tax or accounting professionals. The subcontractors will be bound by our client confidentiality terms.
We reserve the right, for the purposes of promotional activity, training or for similar business purpose, to mention that you are a client. As stated above we will not disclose any confidential information.
10. Conflicts of interest
We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. Where conflicts are identified that cannot be managed in a way that protects your interests then we regret that we will be unable to provide further services. If this arises, we will inform you promptly.
We reserve the right to act for other clients whose interests are not the same as or are adverse to yours subject, to the obligations of confidentiality referred to above.
11. Data Protection
11.1 In this clause, the following definitions shall apply:
‘client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
‘data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the GDPR and any applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation;
‘GDPR’ means the General Data Protection Regulation ((EU) 2016/679); and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
We shall each be considered an independent data controller in relation to the client personal data. Each of us will comply with all requirements and obligations applicable to us under the data protection legislation in respect of the client personal data.
11.2 You shall only disclose client personal data to us where:
You have provided the necessary information to the relevant data subjects regarding its use (and you may use or refer to our privacy notice;
You have a lawful basis upon which to do so, which, in the absence of any other lawful basis, shall be with the relevant data subject’s consent; and
You have complied with the necessary requirements under the data protection legislation to enable you to do so.
Should you require any further details regarding our treatment of personal data, please contact our data protection officer.
11.3 We shall only process the client personal data:
In order to provide our services to you and perform any other obligations in accordance with our engagement with you;
In order to comply with our legal or regulatory obligations; and
Where it is necessary for the purposes of our legitimate interests and those interests are not overridden by the data subjects’ own privacy rights. Our privacy notice contains further details as to how we may process client personal data.
For the purpose of providing our services to you, pursuant to our engagement letter, we may disclose the client personal data to our regulatory bodies or other third parties (for example, our professional advisors or service providers). The third parties to whom we disclose such personal data may be located outside of the European Economic Area (EEA). We will only disclose client personal data to a third party (including a third party outside of the EEA) provided that the transfer is undertaken in compliance with the data protection legislation.
We shall maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of client personal data and against accidental loss or destruction of, or damage to, the client personal data.
In respect of the personal data, provided that we are legally permitted to do so, we shall promptly notify you in the event that:
We receive a request, complaint or any adverse correspondence from or on behalf of a relevant data subject, to exercise their data subject rights under the data protection legislation or in respect of our processing of their personal data;
We are served with an information, enforcement or assessment notice (or any similar notices), or receive any other material communication in respect of our processing of the client personal data from a supervisory authority as defined in the data protection legislation (for example in the UK, the Information Commissioner’s Officer); or
We reasonably believe that there has been any incident which resulted in the accidental or unauthorised access to, or destruction, loss, unauthorised disclosure or alteration of, the client personal data.
Upon the reasonable request of the other, we shall each co-operate with the other and take such reasonable commercial steps or provide such information as is necessary to enable each of us to comply with the data protection legislation in respect of the services provided to you in accordance with our engagement letter with you in relation to those services.
12. Electronic and other communication
Unless you instruct us otherwise we will, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments.
With electronic communication, there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However electronic communication is not totally secure and we cannot be held responsible for damage or loss caused by viruses nor for communications that are corrupted or altered after despatch.
Nor can we accept any liability for problems or accidental errors relating to this means of communication especially in relation to commercially sensitive material.
These are risks you must agree to bear in return for greater efficiency and lower costs. If you do not wish to accept these risks please let us know and we will communicate by paper mail, other than where electronic submission is mandatory.
Any communication sent through the post system by us is deemed to arrive at your postal address two working days after the day that the document was sent.
13. Fees and payment terms
Our fees do not solely depend on the amount of time spent on your affairs. Levels of skill, responsibility, importance and value are also factors, as well as the level of risk. Disbursements represent travel, accommodation and other expenses incurred in dealing with your affairs.
If we provide you with an estimate of our fees for any specific work, then that estimate will not be contractually binding unless we explicitly state that will be the case.
Where requested we may indicate a fixed fee for the provision of specific services or an indicative range of fees for a particular assignment. It is not our practice to identify fixed fees for more than a year ahead as such fee quotes need to be reviewed in the light of events. If it becomes apparent to us, due to unforeseen circumstances, that a fee quote is inadequate, we reserve the right to notify you of a revised figure or range and to seek your agreement thereto.
If it is necessary to carry out work outside the responsibilities agreed with you for each service, we will advise you in advance. Any additional work will involve additional fees. Accordingly, we would like to point out that it is in your interests to ensure that your records etc. are completed to the agreed stage.
Invoices are payable in full (including disbursements) in accordance with the terms set out on the invoice. Our fees are exclusive of VAT, which will be added where it is chargeable. If you do not accept that an invoiced fee is fair and reasonable you must notify us within 21 days of receipt, failing which you will be deemed to have accepted that payment is due.
Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees.
It is our normal practice to ask clients to pay by monthly direct debit and to periodically adjust the monthly payment by reference to actual billings.
We reserve the right to charge interest on late paid invoices at the current rate under the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of any fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
In the case of a dispute over the level of fees charged we reserve the right to require that the matter is dealt with through arbitration. We recommend that arbitration is undertaken by the fee arbitration service provided by the ICAS for its members. The fee arbitrator will be appointed by the ICAS’s President and the fee will be as negotiated with the arbitrator.
In the event that we cease to act in relation to your company’s affairs, you agree to meet all reasonable costs of providing information to the company’s new advisors. In particular, you agree to meet these costs where we are required by law to provide information to a successor firm.
We will only assist with implementation of our advice if specifically instructed and agreed in writing.
15. Intellectual property rights
We will retain all copyright in any document prepared by us while carrying out the engagement, save where the law specifically provides otherwise.
If any provision of these terms and conditions, the engagement letter or enclosed schedules is held to be void, then that provision will be deemed not to form part of this contract and the remainder of this agreement shall be interpreted as if such provision had never been inserted.
In the event of any conflict between these terms of business and the engagement letter or appendices, the relevant provision in the engagement letter or schedules will take precedence.
17. Internal disputes within a client
If we become aware of a dispute between the parties who own or are in some way involved in the ownership and management of the business, it should be noted that our client is the business and we would not provide information or services to one party without the express knowledge and permission of all parties. Unless otherwise agreed by all parties we will continue to supply information to the normal place of business for the attention of the directors. If conflicting advice, information or instructions are received from different directors in the business, we will refer the matter back to the board of directors/the partnership/the LLP and take no further action until the board/partnership/LLP has agreed the action to be taken.
18. Investment advice (including insurance mediation services)
If during the provision of professional services to you, you need advice on investments, including insurances, we may have to refer you to someone who is authorised by the Financial Conduct Authority or licensed by a Designated Professional Body, as we are not.
Insofar as we are permitted to do so by law or professional guidelines, we reserve the right to exercise a lien over all funds, documents and records in our possession relating to all engagements for you, until all outstanding fees and disbursements are paid in full.
20. Limitation of liability
We will provide our services with reasonable care and skill. However, to the fullest extent permitted by law, we will not be responsible for any losses, penalties, surcharges, interest or additional tax liabilities where you or others supply incorrect or incomplete information, or fail to supply any appropriate information or where you fail to act on our advice or respond promptly to communications from us or the tax authorities.
You will not hold us, our principals and staff, responsible, to the fullest extent permitted by law, for any loss suffered by you arising from any misrepresentation (intentional or unintentional) supplied to us orally or in writing in connection with this agreement. You have agreed that you will not bring any claim in connection with services we provide to you against any of our partners or employees personally.
21. Limitation of Third Party rights
The advice and information we provide to you as part of our service is for your sole use and not for any third party to whom you may communicate it unless we have expressly agreed in the engagement letter that a specified third party may rely on our work. We accept no responsibility to third parties, including any group company to whom the engagement letter is not addressed, for any advice, information or material produced as part of our work for you which you make available to them. A party to this agreement is the only person who has the right to enforce any of its terms and no rights or benefits are conferred on any third party under the Contracts (Rights of Third Parties) Act 1999.
22. Period of engagement and termination
Unless otherwise agreed in the engagement covering letter, our work will begin when we receive your implicit or explicit acceptance of that letter. Except as stated in that letter we will not be responsible for periods before that date.
Each of us may terminate this agreement by giving not less than 21 days’ notice in writing to the other party, except where you fail to cooperate with us or we have reason to believe that you have provided us or HMRC with misleading information, in which case we may terminate this agreement immediately. Termination will be without prejudice to any rights that may have accrued to either party prior to termination.
In the event of termination of this contract, we will endeavor to agree with you the arrangements for the completion of work in progress at that time, unless we are required for legal or regulatory reasons to cease work immediately. In that event, we shall not be required to carry out further work and shall not be responsible or liable for any consequences arising from termination.
23. Quality control
In order for us to provide you with a high-quality service on an ongoing basis, it is essential that you provide us with relevant records and information when requested, reply to correspondence in a timely manner and otherwise follow the terms of the agreement between us set out in this Standard Terms of Business and associated Engagement schedules. We therefore reserve the right to cancel the engagement letter between us with immediate effect in the event of:
- Your insolvency, bankruptcy or other arrangement being reached with creditors;
- Failure to pay our fees by the due dates;
- Either party being in breach of their obligations where this is not corrected within 30 days of being asked to do so.
As part of our ongoing commitment to providing a quality service, our files are periodically subject to an independent regulatory or quality review. Our reviewers are highly experienced and professional people and are, of course, bound by the same requirements of confidentiality as our principals and staff.
When dealing with HMRC on your behalf we are required to be honest and to take reasonable care to ensure that your returns are correct. To enable us to do this, you are required to be honest with us and to provide all necessary information in a timely manner. For more information about ‘Your Charter’ for your dealings with HMRC, see www.hmrc.gov.uk/charter/index.htm. To the best of our abilities, we will ensure that HMRC meet their side of the Charter in dealings with you.
We will take account of the steps and checks suggested by HMRC in their ‘Agent Toolkits’. While use of the Toolkits is voluntary, we will ensure that our quality control procedures match or enhance the suggestions in the Toolkits so that, in the unlikely event that HMRC consider any of your tax returns with which we assist to be inaccurate, we will be able to help you demonstrate to HMRC that reasonable care has been taken in the preparation of the return, thereby significantly reducing the possibility of an inaccuracy penalty, you will remain responsible for maintaining good quality, supporting records for each return, for providing us with all relevant information and explanations and for acting on any advice that we give you.
Should we resign or be requested to resign we will normally issue a disengagement letter to ensure that our respective responsibilities are clear.
Should we have no contact with you for a period of 1 year or more we may issue to your last known address a disengagement letter and thereafter cease to act.
25. Professional rules and statutory obligations
As required by the Provision of Services Regulations 2009 (SI 2009/2999), details of the firm’s professional registrations can be found on our website.
We will observe and act in accordance with the bye-laws, regulations and ethical guidelines of the Institute of Chartered Accountants of Scotland and will accept instructions to act for you on this basis. In particular, you give us the authority to correct errors made by HMRC where we become aware of them. We will not be liable for any loss, damage or cost arising from our compliance with statutory or regulatory obligations.
26. Reliance on advice
We will endeavor to record all advice on important matters in writing. Advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral advice (for example during a meeting or a telephone conversation) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.
27. General Anti-Abuse Rule
Since 17 July 2013 a General Anti-Abuse Rule has been in operation in the UK. This rule enables HM Revenue & Customs to further tackle abusive tax planning schemes. Due to the low probability of eventual success of such schemes and the high ethical standards of this firm, it is our policy not to advise on tax schemes that we consider to be artificial or aggressive in nature. Please let us know if you would like to discuss this matter further or if you feel that you are disadvantaged in any way by the firm’s policy on tax avoidance.
28. Retention of papers
You have a legal responsibility to retain documents and records relevant to your tax affairs. During the course of our work we may collect information from you and others relevant to your tax affairs. We will return any original documents to you if requested. You should retain these records for 6 years from the 31 January following the end of the tax year to which they relate. You should retain them for longer if HMRC enquire into your tax return.
Whilst certain documents may legally belong to you unless you tell us not to, we may destroy correspondence and other papers that we store, electronically or otherwise, which are more than seven years old. You must tell us if you require the return or retention of any specific documents for a longer period.
29. The Provision of Services Regulations 2009 (‘Services Directive’)
In accordance with the disclosure requirements of the Provision of Services Regulations 2009, details of our professional indemnity insurance can be found on our website.
30. Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standards
Unless agreed specifically in a separate engagement letter, we are not responsible for your compliance with the International Tax Compliance (United States of America) Regulations 2013, produced as a result of FATCA, we are not responsible for the categorisation of any UK entity into either a Financial Institution (FI) or an active or passive Non-Financial Foreign Entity (NFFE) nor, if a Financial Institution, for its registration with the US Internal Revenue Service (IRS) and subsequent submission of the required annual returns to HM Revenue & Customs.
31. Use or our name in statements or documents issued by you
You are not permitted to use our name in any statement or document that you may issue unless our prior written consent has been obtained. The only exception to this restriction would be statements or documents that in accordance with applicable law are to be made public.