Dishonest tax agents: file access notice: power to access tax agent's files
There are two situations where we are able to obtain tax agent’s files. They are known as Case A and Case B situations.
Case A situation
Case A situations are where we have issued a conduct notice, see CH182140, and any appeal rights against that notice have either expired or been exhausted.
Case B situation
Case B situations are where the individual has been convicted of an offence relating to tax that involves fraud or dishonesty, and the offence was committed after the individual became a tax agent. It does not matter whether they were still a tax agent when they committed the offence, and it is regardless of the capacity in which they committed the offence.
A further requirement in a Case B situation is that any appeal rights against that conviction have either expired or been exhausted within the last 12 months.
Case B situations allow us to go straight to the tribunal for a file access notice. We do not have to issue a conduct notice or demonstrate any dishonest conduct to the tribunal before approval.
If either Case A or Case B situations exist then we are able to obtain the tax agent’s files. We request the tax agent’s files using a file access notice. It requires the person to provide us with ‘relevant documents’.
‘Relevant documents’ are the tax agent’s working papers and other documents used in assisting clients with their tax affairs, see CH182600.
However, see CH182700+ for guidance on documents and information that we cannot request using a file access notice.
We must obtain tribunal approval before we issue a file access notice in both Case A and Case B situations. The tax agent is able to make representations initially to us, and then again directly to the tribunal. 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 who 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+.
We can issue a file access notice after 1 April 2013 requesting documents that existed before 1 April 2013. Although we can request these earlier documents, we cannot use them to determine the amount of penalty for dishonest conduct. We would request them to enable us to correct the tax records of clients, and provide grounds for assessment on those clients. The information will also indicate the extent of dishonest conduct and may influence our decision to investigate criminally.