Missing the Elephant in the room.

These last few weeks I have been thinking back to myCompliance monkey time in Law Enforcement. Those of you who can remember back that far probably have an image of a young surfer dude who turned up in the most scruffiest uniform, collar half in half out, requiring either a haircut or beard trim, usually both and never mind the lack of tie!

Those who worked with me will probably remember a person who worked manically yet methodically, questioning everything, discussing and testing theories before providing a list of potential targets for Officers to stop and check out. I am very proud to have been one of the highest seizing drugs Officers during my time, but all this could not have been done without the above, the support of my senior officers (and at times I pushed them to the limits) and the Law Enforcement Officers and teams I worked with, who looked at the whole.

In recent weeks there has been a lot of international interest in the offshore world regarding tax avoidance and tax evasion as well as financial crime, which has included revelations of HSBC in Switzerland. This post is not about HSBC, what is or isn’t tax evasion or even the ethics behind tax avoidance or financial crime, but I hope to try to provide some advice where the due diligence process fails. I have previously written about how due diligence is only part of the solution. As a past Customs and Immigration Officer and now as a compliance manager and consultant these documents are essential in identifying and verifying the target/ client but this is by no means the be all or end all.

It is all about the analysis of information in front of us, checking these details and asking the questions not our pre-conceived ideas or prejudices. Do we ask the question of why our clients invest offshore or set up dynastic structures or entrepreneurial structures offshore, do we understand and test and document, this rationale and reason and do the transactions make sense and fit the profile?

As a Law Enforcement Officer I would start by building a picture of travellers, and ask myself if the analysis I had in front of me made sense. Were there any comparisons to known smuggling and people trafficking profiles? Then I would seek out the experience of my peers, asking questions and gaining in-sights, understanding and clarifying what I had in front of me. This is no different from a Financial Services Business, where you are obtaining identification details, verifying these with documentation, researching through the various open-source intelligence databases for known facts, asking questions regarding the rationale. Seeking supporting evidence e.g. tax/ legal rationale and advice for the creation of a structure, its suitability and comparing the client and business relationship to known criminal profiles.

Having assisted licensees when they have been subjected to on-site visits by the Commission the main observation is, to a greater or lesser extent, that the requirements of the Regulations and the Handbook have been met. Some licensees have gone for just meeting the required standards others are far in excess of what is required by the regulations, but all generally pass with only the criticism of lack of former names or certification not meeting the expectations of the Commission. The real bug bear for the Commission is the lack of or insufficient periodic review. Yes we screen for sanctions, yes we check the appropriateness of our due diligence and we risk assess to what we see in our verification documents and from our refreshed our database checks but is this enough? Well unfortunately no it’s not and we are missing the Elephant in the room.

We spend alot of time getting the tax/ legal advice, the rationale of the relationship and the expected transactions at the start of the on-boarding process but we seldom question these areas again in the course of the business relationship. Tax advice is valid when it is given and after that it is outdated and what was legal tax mitigation can become tax evasion, transactions vary due to life circumstances including financial crime, entrepreneurial relationships change due to economic reasons and taking advantage of situations, some which can be financial crime. The information is in front of our eyes yet we fail to look at it, react to it, analysis it and document these changes or question the rationale.

Being miles above and beyond regulation may serve little purpose apart from to annoy clients and make the offshore world difficult to invest in and access for those with legitimate reasons and rationales. You may think it looks good to a Regulator to be gold platted but that is not the case as they are only looking at compliance with the regulatory requirements. The information to detect financial crime in all its guises is in front of us, the transactions, the file notes of meetings and the tax advice or legal advice. All this allows us to analyse the client to ensure that what we have fits in to our knowledge and understanding of the them and that what we have is legal and remains legal. This though is the Elephant in the room we seldom look at and where Regulators will not look kindly on when they find it lacking, regardless of how high above the required due diligence standards you are!

In all these Financial crime and Tax evasion cases if the advice had been looked at, the transactions and rationale been reviewed in detail would things have been different? It is not OK to say things were different back in the day, it does not absolve you or anyone from financial crime or being complicit in it.

If the only thing you take from this is to look at the whole picture, analyse all the information and rationale of a client, ask any questions you can’t fathom out, and obtain answers and document your full review, this post will have been worth it.

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