Review of direct and indirect taxes decisions: carrying out a review: during the review
The role of the review officer is not to defend the disputed decision, but to consider the decision or assessment and the surrounding information objectively. More information on the role of the review officer is at, ARTG4080.
Review officer action during review
When reviewing the case the review officer should
- Make sure that they have all the relevant information
including all the case papers and representations from the customer, and may include evidence from third parties
- Make an early estimate about how long the review is likely to take
taking account in particular of whether specialist advice is likely to be needed and the other commitments of those needed to provide it. If necessary seek the customer’s agreement to a different time period. It is better to do this at the start than towards the end of the 45 days if it is likely to be needed, but it should not be done as a matter of course. If the customer does not agree then the review must take place within the 45 day time limit. If the review officer does not complete the review within the time limit, see ARTG4850.
- Keep the customer informed
bearing in mind that it will not usually be necessary to write to the customer before the 45 day review period has expired, unless the review officer requires further information from the customer, or they have completed their review. But if there is to be a delay, for example if the review officer needs to obtain specialist advice or consult the secretariat of a Case Board or Issues Panel, they should tell the customer and if necessary, agree an extension to the 45 day time limit
- Check that the decision is legally and technically valid
including, where appropriate
* making an early decision about whether further advice is needed, and seeking and reviewing that advice as soon as possible * checking that the appeal is properly made and the criteria for the particular appeal are satisfied (direct taxes) * checking that no unlawful enquiry was made, such as if there was a failure to issue a notice under S9A TMA 1970 * checking that confidentiality has not been breached * checking that any surveillance carried out has been properly authorised * checking that there is a valid appeal to HMRC against the decision (direct taxes), and that * actions were taken within any specified time limit
A decision which does not comply with some of these tests may still be valid, depending on the particular circumstances of the case. For example where confidentiality has been breached or surveillance rules not followed. But they are all factors which may influence the validity of the decision.
- consider all the facts critically
by thoroughly reviewing the case papers and customer representations and checking anything that is unclear
- Consider the customer’s case
and whether we have taken enough account of the customer’s arguments. As well as checking the facts and considering whether the arguments are supportable in law, the review officer should identify the strengths and weaknesses of the case. If the review officer finds that they agree with the customer, they should say so in their conclusion of review letter and close the case (indirect taxes) or pass the case to the decision maker (direct taxes) to close the case.
the decision maker or customer or seek further specialist advice from accountancy, technical or other specialists, such as Solicitor’s Office. It will not be necessary in every case to seek legal advice. But where the review officer thinks that legal advice may be appropriate in the circumstances of the case, they should approach the relevant technical specialist in the first instance (but see ‘Nature and extent of review’ below). The specialist will agree with the review officer whether legal advice is necessary and who should make the referral.
- Consider talking to the customer
as this could clear up areas of confusion, and a phone call or meeting could clarify the matter. But the customer does not have to agree to meet the review officer.
- Unrepresented customers
Reviewers need to handle unrepresented customers sensitively. Sometimes they might not have been able to put over their point of view clearly in the review request, and reviewers should try to get to the bottom of why the unrepresented taxpayer is not content with the decision. This might, for example include asking the customer for clarification either by telephone or face to face
Nature and extent of review
The nature and extent of the review will take account of the complexity of the case and the steps taken in reaching the decision and to resolve the disagreement about the decision.
For example in more complex cases the case may have been considered in detail by a number of stakeholders, such as policy/technical specialists or Solicitor’s Office before the decision was made or as part of negotiations before the review was offered/requested.
Alternatively, a case might have seemed to the decision maker to be relatively straightforward but may in fact raise more significant questions.
The review officer will need to take account of all relevant information provided, if appropriate ring mastering further contact with/between stakeholders to reach their final review conclusions.
Review officers should take a practical approach to seeking advice from specialist and legal stakeholders. They should only seek it where the review officer thinks it will affect the decision or where Departmental guidance indicates that the case should be submitted for advice and it has not been submitted already.
If the review officer does submit the case for advice they must be aware of the time limit for completing the review and seek agreement with the customer to a longer review period if necessary.
Customer provides new information
If the customer provides new information during the review, see ARTG4630.
Technical advice obtained
The review officer will look at the disputed decision and decide whether it should be upheld, varied or cancelled. The decision maker would be entitled to rely on technical advice received where this has been properly applied, unless there was some reason to doubt it, such as the advice having been given in the absence of knowledge about a pertinent factor or apparently based on a misunderstanding of the facts.
If the appealable decision was issued by a decision maker following a decision by a Case Board or in accordance with a strategy set by an Issues Panel (x ref), and the review officer is minded to vary or cancel the appealable decision, they must agree the content of the review conclusion letter with the secretariat of the relevant Case Board or Issues panel, in the same way as a policy or specialist team would be consulted.
Review officers should be aware that it is acceptable for the decision made by a Case Board to override a strategy set by an Issues Panel. In such cases, if the review officer is minded to conclude that the appealable decision should be varied or cancelled, they must agree the content of the review conclusion letter with the secretariat of the relevant Case Board before it is issued.
Negotiations to resolve the dispute
The primary role of the review officer is to review decisions made by the decision maker. The role of the decision maker involves examining evidence and making decisions. Sometimes this will include negotiation of issues of fact (within the framework of the Litigation and Settlement Strategy).
The outcome of negotiations and the arguments made by both sides need to be considered as part of the review. Review officers should not normally attempt to negotiate or renegotiate the decision maker’s decision. But there may be cases where it would be unreasonable to conclude the review without further negotiation.
- negotiations carried out by the decision maker are inadequate in the context of the whole case
- where the customer asked for a review as a result of the decision maker being unwilling to come to a reasonable negotiated position on the basis of the facts presented
In these circumstances the review officer will need to decide how to handle the case. Normally, they should ask the decision maker to negotiate, but define parameters within which the negotiations should take place, as a result of their review of the case.
In particular, if the customer has not provided all relevant information or negotiations are likely to be lengthy the review officer should follow this process.
The review officer may need to ask the customer to agree a longer review period in these cases. The review officer should make their role and that of the decision maker clear, to avoid confusion.
In some simple cases where no further information is needed from the customer and the negotiation can be done quickly (and without prolonged exchanges of correspondence) it may be better customer service for the review officer to negotiate an agreement.
Review officers may wish to discuss a case with decision makers during review. But they should be aware that they must be, and be seen to be, independent of the decision maker as possible at all times.
So discussing cases with caseworkers during the review should generally be avoided. If exceptionally it is necessary to discuss a case with the decision maker in any depth during the review the review officer should tell the customer and offer equivalent telephone or face to face contact to the customer and agent, so the customer has an equal opportunity to make representations directly to the review officer.