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HMRC internal manual

Appeals reviews and tribunals guidance

Applications to the tribunal: Disputes about privileged communications

‘Information notices’ include taxpayer notices, third party notices and notices about persons whose identity is unknown, as defined in paras 1, 2 and 5 Schedule 36 FA2008.

Where there is a disagreement between HMRC and a person to whom we have given an information notice as to whether a document is privileged, either

  • during correspondence, see ARTG7591, or
  • during an inspection of premises, see ARTG7592

the First-tier Tribunal may decide the matter on application.

If the disagreement arises in correspondence the application must be made by the taxpayer, third party, or a person acting on their behalf. If it arises during an inspection, application is made by HMRC (SI 1916 2009).

The appropriate procedure at either ARTG7591 or ARTG7592 must be followed. During the procedure the person should be treated as having complied with the notice in relation to the disputed documents.

Resolution of the dispute

The dispute about whether the document or information is privileged may be settled by agreement between HMRC and the person who received the information notice, at any time before the tribunal hearing.

If the dispute is not settled by agreement, once the Tribunals Service receives the application it will arrange a hearing to decide the matter. The tribunal will decide whether, and to what extent the document is or is not privileged and will direct which part(s) of it (if any) can be disclosed.

The tribunal will notify all parties of its decision and, where that decision is that the document or information is disclosable, it may require disclosure within a certain time limit.

If the information is not provided by the date the time limit expires, then the decision maker may follow the usual procedures for charging penalties where a customer has not complied with an information notice, see CH26220 and CH26800+.

There is no right of appeal against the decision of the tribunal in relation to legal professional privilege. But there is a right of appeal against any penalty charged for not complying with an information notice.