Possession or Power


The FA 2008, Sch. 36, part 4 says there are various restrictions on HMRC’s information and inspection powers.


It states that an information notice can only require a person to produce a document if it is in their possession or power.


A document would be in a person’s power if it was in the possession of a third party but the person could direct or influence the third party to produce it.


If a taxpayer does not produce a document the onus will be on them to show there was no failure because the document was neither in their possession nor in their power. This can happen in cases of partners where it can be shown that some partners have a restricted right of access to documents under the partnership agreement.


Even if a document is in a person’s possession or power there are further restrictions on what HMRC can require to inspect. These cover the following:-


    • Appellant material


    • Journalistic material


    • Personal records


    • Old documents


    • Legally privileged information and documents


    • Audit papers


    • Tax advisors’ papers giving advice.



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