Dishonest tax agents: file access notice: overview
We are able to issue a notice to obtain a tax agent’s files. This is called a ‘file access notice’. We can use the notice in two situations, known as Case A and Case B situations.
We can issue a file access notice where
- a tax agent has engaged in dishonest conduct and we have issued them with a conduct notice (Case A situations), or
- a tax agent has already been convicted of an offence of dishonesty in relation to tax (Case B situations).
In Case A situations we can only issue a file access notice once any appeal against the conduct notice has finally been concluded in our favour or no appeal was made, see CH182160.
We must obtain tribunal approval before we issue a file access notice in both Case A and Case B situations, see CH182680. The tribunal will consider representations from the document-holder. The tribunal’s decision to approve a file access notice is final.
We may issue a file access notice to a tax agent, or another person that we believe holds relevant documents (the ‘document-holder’), requiring them to provide the documents. Where we have issued a file access notice to a person who is not the tax agent (a third party document-holder), that person can appeal against the file access notice on the grounds that it is overly onerous, see CH183000+.
‘Relevant documents’ are the tax agent’s working papers and other documents used in assisting clients with their tax affairs. However, there are certain documents and information that can’t be requested using a file access notice, including
- documents that are not in the person’s possession or power, see CH182740,
- parts of a document where the information is not required to be provided, such as where the document contains
- information relating to a pending tax appeal, see CH182780,
- personal records, see CH182820, or
- journalistic material, see CH182860,
- where the document is over 20 years old, see CH182900, or
- parts of a document that are legally privileged, see CH182940.
Unlike requests made under Schedule 36 FA 2008, tax advice and tax audit papers can be required unless the relevant documents separately fall into any of these categories. The ability to request documents using a file access notice is in addition to the powers available to us under Schedule 36 FA 2008, see CH23000+.
A person commits an offence when they
- conceal, destroy or otherwise dispose of a ‘required document’, or
- arrange for the concealment, destruction or disposal of a required document.
The person is liable to
- an initial penalty for failing to comply with the file access notice of £300, and
- daily penalties of up to £60 a day for each day the person fails to comply, see CH183300+.
We will not charge initial and daily penalties if the person has a reasonable excuse for not complying with the file access notice, see CH183500+.
The person can be prosecuted for the offence, or charged penalties, but not both, see CH185480.