David Whiscombe further considers appeal rights in respect of information notices.
We drew attention in a recent briefing to the importance of appealing against the validity of an “information notice” on issue: waiting for a non-compliance penalty to land on your doormat will be too late. In this note we highlight a quirk that affects the right to appeal at all.
HMRC have the power (under Schedule 36 to Finance Act 2008) to issue a notice requiring you to provide information or produce a document if it’s “reasonably required” to check your own tax position (in which case it’s a “Taxpayer Notice”) or that of someone else (a “Third Party Notice”).
(There is also power to obtain information about people (or a class of people) whose identity is not known to HMRC: this note ignores those special cases.)
About the only basis on which you can appeal against the issue of a Taxpayer Notice is that the information or document isn’t “reasonably required” to check your tax position. In the case of a Third Party Notice you can appeal only on the basis that it would be “unduly onerous” to comply with it. In either case, you can’t appeal at all if what you’re being asked for constitutes part of your “statutory records” (as defined).
Sometimes notices are issued with the prior approval of the tribunal (usually the First-tier Tribunal). If that is the case, there is no right of appeal against the notice, whether it’s a Taxpayer Notice or a Third Party Notice.
What’s worse, any application that HMRC make for prior approval is “ex parte”. That is, you don’t have the right to turn up to the tribunal and say your piece. The person to whom the notice is to be issued has the right (usually—there are exceptions) to “make representations” in advance to HMRC and to have HMRC provide a “summary” of them to the Tribunal. But that is a pretty poor substitute for a proper right of appeal.
So—to preserve appeal rights—it’s desirable to avoid tribunal-approved notices. Desirable, but not always possible.
Taxpayer Notices aren’t usually a problem—HMRC don’t need tribunal consent to issue them and they don’t routinely seek it.
However, to issue a Third Party Notice, HMRC need the consent either of the tribunal or of the person whose affairs are being investigated. If you are that person, and you think it is likely that the tribunal would approve the issue of a Third Party Notice, it is worth considering giving your consent to the notice. Why? Because if a Third Party Notice is issued with your consent, the third party’s appeal rights are preserved: if it’s issued with the tribunal’s consent, they aren’t.
Tricky, not to say tricksy, stuff. Best advice? If HMRC intimate that they are thinking of serving you or someone else with an information notice regarding your affairs, take expert advice. BKL’s, for example.
For more information, please get in touch with your usual BKL contact or use our enquiry form.