Human Rights Act 1998 in Tax Investigations

Human Rights Act 1998

Generally Art.1 of the First protocol and Art.6 and Art.8 of the European Convention on Human Rights incorporated into UK law by the Human Rights Act 1998 safeguard a person’s rights with regards to tax in the same way as they do in other respects.

This is subject however to some caveats:-

• Art.1 of the First Protocol which provides that every natural or legal person is entitled to peaceful enjoyment of their possessions does not prevent HMRC from enforcing tax law and the payments of tax, interest, surcharges and penalties.

• While Art.8 (the right to respect for private and family life) generally applies to information notices and inspections, Art.6 (the right to a fair trial) does not.

Article 8

The right to respect for private and family life provided by Art.8 guarantees a person’s (including a company’s) right to respect for their:-

• Private and family life

• Home

• Correspondence

However, Art.8 (2) permits intrusion into a person’s private or family life if it is:-

• In accordance with the law

• Necessary in a democratic society

• In pursuit of a legitimate aim

Operating within the tax laws to protect the revenues of the UK will satisfy the first and last of these conditions.

To be “necessary” however, HMRC must be able to show that their actions are proportionate and reasonable. Officers are instructed that to assess proportionally, they must take into account the following:-

• The nature and degree of the interference.

• Whether the interference is reasonable in the circumstances

• Whether the information can be obtained in a less intrusive way

and that interference will be considered proportional only if it is the minimum required to achieve the aim, taking into account:-

• What the officer expects to gain from the action

• The degree and nature of the intrusion

• Whether the information has already been provided

• Whether information could be obtained in a less intrusive way

• How sensitive the information is

• The person’s expectation of privacy.

If it is not clear exactly why the information is required the officer should be challenged and asked to explain why a breach of the person’s privacy is considered to be justified in the circumstances.

It should be pointed out, if necessary, that the more private the information, the more justification is needed.

Contact KinsellaTax on 0800 471 4546.