Introduction: giving advice to customers
Our duty is to explain how we consider tax law should be applied. This does not include giving advice to customers on how to arrange their personal affairs. The distinction is important.
In practice, a customer might, on making an apparently simple enquiry, omit some important relevant fact. This may not be deliberate, but arises because the customer is not aware that it is relevant to the claim for relief, or liability to tax. In addition, there may be interactions with other taxes, or financial, non-tax, implications.
You should always find out as much as possible before giving customers advice. Anyone attempting to give advice without knowledge of all the facts is at risk of giving misleading information. Every year a small number of claims where this has occurred are received by the Parliamentary Commissioner for Administration (the Ombudsman) and the Adjudicator.
Advice in relation to past events
We are here to help customers understand their rights and obligations. This includes drawing attention to any deductions or reliefs, which seem to be clearly due but which may have been overlooked, and responding freely to requests for guidance on customers’ rights and liabilities and on making returns, claims to relief, etc.
If customers have specific enquiries about their own affairs, it may be necessary to respond to these in detail, by letter, rather than in general terms.
Advice in relation to future events
You can provide tax advice on events which are yet to happen, but you must be careful in doing so. It would be wholly inappropriate to advise on the tax implications of a transaction about to be carried out, other than in general terms.
Your response should be, for example, that under the present law an allowance is due where certain conditions are met. Always accompany your answer with a clear statement that ‘whether the allowance would be given in the case in question will depend entirely on the law at the relevant time and on the precise facts’.
You should go no further than that in attempting to deal with a taxpayer’s own affairs until they come to be examined in the normal way. Going too far too early can lead to decisions being judicially reviewed later.
The more complex the transaction, the greater the need for the taxpayer to obtain professional advice from an advisor who can examine the particular circumstances closely and ensure that all the relevant considerations have been taken into account.
Advice should not be given where it appears that the enquirer is seeking assistance in finding a way around the straightforward interpretation or application of the statute in line with normal HMRC practice, or where the transaction contemplated is clearly designed to avoid or reduce the tax charge which might otherwise be expected to arise.
Non-statutory business clearances
HMRC operate a procedure for non-statutory clearances for business customers. A non-statutory clearance is written confirmation of HMRC’s view of the application of tax law to a specific transaction or event that a customer can rely on in most circumstances.
Under the procedure, customers can obtain clearances:
- on areas of material uncertainty for all taxes arising within four Finance Acts of the introduction of any new legislation; and
- for direct tax cases, on legislation older than last four Finance Acts where there is material uncertainty around the tax outcome of a real issue of commercial significance to the business itself, determined by reference to the scale of the business and the impact of the issue upon it.
Guidance on the procedure can be found in the Non-Statutory Business Clearances Guidance Manual.