Part 3: Corporate offences of failure to prevent facilitation of tax evasion Failure of relevant bodies to prevent tax evasion facilitation offences by associated persons Section 46: Failure to prevent facilitation of foreign tax evasion offences
Section 46 creates an offence of corporate failure to prevent the facilitation of foreign tax evasion offences.
	This offence is broadly similar to the offence created in section 45 in relation to UK taxes. It is slightly narrower in scope, in that only certain relevant bodies can commit the foreign tax offence. Section 46(2) states that the offence can only be committed where the relevant body is incorporated under the law of the UK, the relevant body carries on part of its business from the UK, or where the associated person does the facilitating criminal act in the UK. Where a relevant body incorporated outside of the UK, that conducts no business from the UK, has an associated person carry out a criminal act abroad, the section 46 foreign tax offence will not be committed.
	Sub-section (5) gives effect to the requirement that there be "dual criminality". A foreign tax evasion offence is defined as conduct that is criminal under the foreign law in question and would also be regarded by the UK courts as amounting to an offence of being knowingly concerned in, or taking steps with a view to, the fraudulent evasion of the tax. Thus the section 46 offence cannot be committed where the acts of the associated person would not be criminal if committed in the UK, regardless of what the foreign criminal law may be.
	Sub-section (6) likewise confirms the requirement of "dual criminality" in relation to the act of facilitation by a person acting in the capacity of a person associated with the relevant body. Even where the foreign criminal law renders inadvertent or negligent facilitation of a crime criminal, the new offence will not be committed, as the requirement for "dual criminality" will not be met because UK law renders criminal only deliberate acts of facilitation.