A taxpayer notice will set a time-limit for complying with the information request. The officer should carefully consider how much time is needed to comply but they will not necessarily know all the circumstances. If their time-limit is too short, it is important to contact them immediately, or as soon as it becomes clear that more time is needed, to agree a longer time. If the officer refuses to accept that more time is needed an appeal can be made to the Tribunal on the grounds that the officer allowed insufficient time.

If the information cannot be obtained or documents do not exist, the officer can set aside the relevant part of the notice. They may, however:-

  • charge a penalty for failing to keep records, or
  • take the record-keeping failure into account when determining the amount of the penalty for any inaccuracy in a return.

 

HMRC will not accept that a legal or professional adviser’s duty of confidentiality towards their client is sufficient reason for not complying with a taxpayer notice addressed to themselves for the purpose of checking their own tax position. They have given assurances that information obtained:-

  • will remain confidential within HMRC, unless there is a statutory gateway that provides for it to be shared
  • will not be used to enquire into the affairs of others.

 

So, for example, they will not use information about a patient’s expensive dental work, obtained in the course of checking a dentist’s tax position, to start an enquiry, or as part of an enquiry, into the patient’s tax affairs. HMRC take the view that Finance Act 2008, Sch. 36 overrides the duty of confidentiality. They say that:-

‘In HMRC’s view, Schedule 36 FA08, like its predecessor TMA70/S19A, overrides the duty of confidentiality. This view was accepted by the Special Commissioners in Guyer v Walton, SPC 274/01, an appeal by a solicitor against a notice issued under section 19A TMA70 [note that the part of this decision relating to disclosure of legally privileged documents has been overridden by the House of Lords judgment in the case of R v Special Commissioner and another, ex parte Morgan Grenfell & Co. Ltd – but the finding on client confidentiality stands].’

In view of the sensitivities the officer will normally issue a formal notice at the start so that the professional can point to this as their justification for providing otherwise confidential information. They will also be particularly careful to ensure that the notice cannot be challenged under the European Convention on Human Rights (ECHR), Art. 8 for not being proportionate. Any request must be for information or documents that are relevant to the compliance check and the least intrusive way of resolving any doubts or queries.

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