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Phoenix Company Fraud

Published: Monday, June 3, 2024

The Pre-pack insolvency procedure is totally different to that where an administrator is appointed with the intent to dispose of the business if a third-party buyer can be found or otherwise liquidate the business.

In the situation where the insolvent business is sold to a new company controlled by the same directors, the new company is colloquially known as a ‘Phoenix company’ having formed from the ‘ashes’ of the failed company.

HMRC and the Insolvency Service are alert to the potential, fraudulent activity which, historically, has frequently been attached to the manipulation of Phoenix companies.

Both The Insolvency Service and HMRC enjoy wide powers to investigate companies and directors when fraud is suspected, which may lead to civil or criminal action being commenced. Hamraj Kang comments upon legitimate Pre-pack administrations and the potential for Phoenix company fraud.


Potential for Fraud

The Regulations are designed to avoid fraud of the nature frequently conducted through the misconduct of Phoenix companies such as, inter alia:

  • defrauding general creditors - by transferring plant or machinery to the Phoenix company at an undervalue. The creditors of the insolvent company are deprived of the asset value for the benefit of the directors of the Phoenix company.

  • avoiding tax liabilities - HMRC is a company creditor in respect of outstanding tax such as VAT and National Insurance Contributions and will be deprived of the same in the same fashion as all other creditors.


Consequences of Fraud

HMRC has the power to implement various steps when seeking to recover unpaid tax through civil investigations and may:

  • make directors personally liable for VAT
  • issue bankruptcy proceedings against directors
  • pursue Director Disqualification Proceedings
  • issue VAT penalty Notices
  • launch a criminal fraud investigation


The Insolvency Service

The Insolvency Service has powers to:

  • conduct its own investigations
  • disqualify directors
  • set aside transactions which were made at an undervalue
  • apply to the High Court for the Phoenix company to be wound up
  • initiate criminal proceedings
  • make directors personally liable for the creditors’ losses
  • pursue the family members of directors, creditors and shareholders who benefitted from transactions at an undervalue


What to do if you are subject to an investigation

If you are the subject of an Insolvency Service, HMRC investigation, or insolvency proceedings of any nature are threatened against you or any company with which you are involved, it is essential that you seek advice immediately.

The KANGS team are immensely experienced in handling insolvency proceedings of whatever nature assisting both companies, directors, and other officers.

If we can be of assistance, our team will be delighted to hear from you via:

Telephone: 0333 370 4333

Hamraj Kang
Kangs Solicitors
Country:
England, UK
Practice Area:
Criminal Fraud
Phone Number:
020 7936 6396
Fax:
N/A
Hamraj acts for corporate and individual clients in investigations brought by the major UK law enforcement agencies including the SFO, HMRC, FCA, NCA, CMA, CPS, BEIS, ICO, Trading Standards and a wide range of regulatory bodies. He has particular expertise in HMRC investigations and prosecutions including MTIC & VAT fraud, money laundering, tax & duty evasion and regularly conducts cases throughout the country. There are few solicitors nationally who can match Hamraj’s experience of complex multi-million pounds MTIC and VAT fraud cases as he acted in many such cases in his career. He has considerable expertise in the areas of money laundering, bribery & corruption and insider dealing, having been instructed by a number of PLCs and senior company executives on such matters. The work is often complex, multi-jurisdictional and necessitates overseas travel which has led to Hamraj working in numerous overseas jurisdictions. Hamraj advises corporate and individual clients both during and in the immediate aftermath of a dawn raid when quick, effective and incisive advice is required to protect the legal rights and reputation of the client. He has considerable experience of representing clients in interviews with all the leading law enforcement agencies including the SFO, HMRC and the NCA. He is admired for his novel tactical thinking and possesses a proven track record of guiding clients to a successful conclusion in many difficult and demanding cases. As a result of working on high profile and complex fraud cases, Hamraj’s client base is both national and international ranging from publicly listed companies to individual clients. Due to his expertise and experience in international financial crime investigations, Hamraj is also instructed in complex extradition cases often with a financial crime background involving allegations such as money laundering, wire fraud, bribery and corruption. He accepts instructions involving all jurisdictions but most notably the USA, Russia, CIS countries, India, Pakistan, Africa, the Caribbean, South America and the Far East. Civil Fraud & Asset Recovery In addition to criminal fraud, Hamraj advises in relation to civil fraud matters acting for both claimants and defendants. His clients range from large corporations to private individuals with the work often including early action and interim reliefs.  The areas of work include: Cryptocurrency disputes The conduct of internal investigations on behalf of corporate clients Obtaining and responding to freezing orders Obtaining and responding to search orders Norwich Pharmacal orders Receivership orders The civil fraud and asset recovery High Court litigation for claimants and defendants includes allegations of fraudulent misrepresentation, breach of fiduciary and directors’ duties, unjust enrichment, unlawful means conspiracy, bribery, deceit, carousel/MTIC fraud, boiler room fraud and bogus investment schemes. Civil Recovery | POCA Hamraj is recognised by Chambers UK as a leading lawyer in the area of proceeds of crime and asset forfeiture, being one of only six solicitors ranked in Band 1 in the country. His work includes civil recovery proceedings under Part 5 of POCA such as Property Freezing Orders, Civil Recovery Orders and Account Freezing Orders. Hamraj is also able to advise in relation to Interim Freezing Orders and Unexplained Wealth Orders. HMRC Tax Investigations | Tax Tribunals There is often a considerable overlap between criminal and civil fraud proceedings and HMRC civil tax investigations. Hamraj regularly advises both corporate and individual clients in relation to HMRC civil tax investigations, VAT Assessments including Kittel Assessments as well as COP8 & COP9 investigations. The work includes representation before the First-tier Tax Tribunal and the Upper Tribunal in relation to VAT Assessments, Kittel VAT Notices, Direct Tax Appeals, Personal Liability Notices, Condemnation Proceedings and Excise Duty matters. Disciplinary | Regulatory | Sports Work Hamraj has represented a number of professionals facing criminal and regulatory allegations including accountants and other financial professionals, solicitors, doctors, dentists and pharmacists. He has developed an excellent understanding of the regulatory framework and codes of professional conduct governing the professions. In recent years, Hamraj has successfully represented a number of solicitors in serious criminal fraud prosecutions and achieved their acquittal which has resulted in a successful outcome in associated SRA disciplinary proceedings. Hamraj has represented many individuals from the sporting world (mainly football, cricket, horse racing and boxing) and is regularly instructed by a number of Premier League and Championship Football Clubs. Serious Criminal Work Hamraj also undertakes serious criminal work such as historic sexual allegations, murder, corporate manslaughter, drugs offences and serious driving offences, having acted in many high-profile cases of this nature. Clients include football clubs, members of the professions, company executives and public figures from the world of entertainment, politics, media and sport. Hamraj places the issues of confidentiality, privacy and reputation management at the forefront of his strategy when conducting cases. Matters are dealt with the utmost sensitivity and complete discretion. He always adopts a strong and proactive approach to investigations with the overriding objective to bring each matter to a successful and swift conclusion, and where possible, to avoid court proceedings and any adverse publicity for his client.

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