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In this situation, it may be possible to create a document after the event which recites what actually happened, and which records the key terms of the transaction.
The document should be dated when it is actually signed, but it can refer to the historic effective date of the transaction.
This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator.
These may include registering the transfer of land or intellectual property rights, or obtaining third party consents or releases.
Secondly, the transfer may trigger liabilities, such as where the relevant group companies participated in a defined benefit pension scheme.
Is it legal to comply with the request or must it always be refused outright?
Alternatively, is there a way of legally trying to achieve the required objective?
Documenting a transaction which has already happened One possible scenario is that the relevant transaction has already happened, but just hasn’t been documented yet.
For example, there may have been a transfer of trade from one group company to another on a particular date.
The same considerations as regards legal and other due diligence would apply so as to manage the risk of any unintended liabilities being triggered, and to make sure that the legal transfer of the relevant assets is completed.
Conclusion It can be very tempting just to ‘backdate’ documents, with the intention of making life easier. With a bit of thought and investigation, is it often possible to achieve a result which gets close to the desired result and also lets you sleep at night.
I am sure that from time to time we have all come across the vexed question of backdating documents.