CH177140 - Sanctionable conduct by tax advisers: file access notice: approval by tribunal
We may issue a file access notice without prior approval from the tribunal, provided the notice is issued to the tax adviser. Where we want to issue a file access notice to a third-party document-holder, we must seek prior approval from the tribunal.
Where we seek tribunal approval prior to the issue of a file access notice, we must:
- tell the document-holder (whether it be the tax adviser or a third party) that we will require relevant documents from them, to prevent the documents being destroyed in the interim
- give the document-holder a reasonable opportunity to make representations to us
- ensure the application is made by, or with the agreement of, an authorised officer,
- ensure the tribunal is satisfied that the case falls within a Case A or Case B situation, see CH177020
- ensure the tribunal is satisfied that, in the circumstances, the officer giving the notice is justified in doing so
- provide the tribunal with a summary of any representations that were made to us by the document-holder.
Prior to seeking tribunal approval, we must also have reasonable grounds to suspect a tax adviser is engaging in, or has engaged in, sanctionable conduct.
The circumstances where we seek tribunal approval to issue a tax adviser with a file access notice will be limited and may include where a tax adviser has previously not engaged with or responded to a file access notice.
The tribunal does not have to be satisfied that the tax adviser is engaging, or has engaged, in sanctionable conduct for it to approve the file access notice. It only needs to be satisfied that either Case A or Case B circumstances exist (see CH177020) and that the file access notice will be properly made and comply with formal requirements.
The tribunal decision to approve the issue of a file access notice does not fall within section 11 (right to appeal to Upper Tribunal) and section 13 (right to appeal to Court of Appeal etc) of the Tribunals, Courts and Enforcement Act (TCEA) 2007. This means that there is no right of appeal against the tribunal’s decision to approve a file access notice.
The only exception to this is where a file access notice is issued, with tribunal approval, to a third-party document-holder. The document-holder in these circumstances may appeal the notice on the ground that it would be unduly onerous to comply with it (see CH177250).