CH178290 - Sanctionable conduct by tax advisers: penalty for sanctionable conduct: disclosure: determining the quality of the disclosure
To determine the quality of disclosure we need to consider the three elements of disclosure (telling, helping and giving access. Do this by reference to:
- timing
- nature, and
- extent.
As part of this we must consider the person’s compliance with any file access notice that we issued in connection with the sanctionable conduct.
The guidance at CH178300 for telling, CH178310 for helping and CH178320 for giving access, explains the circumstances that we should take into account when considering the quality of a disclosure.
When we have considered all relevant factors, the amount of the penalty will have regard to the three elements of disclosure (telling, helping and giving access). Consider any representations made by the person. They may be able to offer evidence that leads you to a different view of the disclosure.
A person’s quality of disclosure will not be disadvantaged if they do not disclose documents that they reasonably consider to be privileged, see CH177210 or are covered by any of the other exclusions.
We should also bear in mind that tax advisers typically owe contractual and professional duties of confidentiality to their clients. Where the adviser is not a legal professional, this will not amount to legal professional privilege and so will not prevent an adviser from providing documents in compliance with a file access notice. However, it may prevent the adviser from voluntarily providing documents beyond the scope of those we specifically request.
There are overlaps between the three elements of disclosure, so we may consider a single course of action under more than one heading. Equally, we may consider a failure to do something or a misleading action under more than one heading.