Dishonest tax agents: file access notice: approval by tribunal
We are unable to issue a file access notice without the approval of the tribunal.
The tribunal can approve a file access notice where
- the application for approval is made by, or with the agreement of, an authorised officer, see CH882700
- the tribunal is satisfied that the case falls within a Case A or Case B situation, see CH182540
- the tribunal is satisfied that, in the circumstances, the officer giving the notice is justified in doing so
- the document-holder and, where different, the tax agent, have been told that relevant documents are to be required and they have been given a reasonable opportunity to make representations to us, see CH882530, and
- the tribunal has been given a summary of any representations that were made.
The tribunal does not have to be satisfied again that the tax agent is engaging, or has engaged, in dishonest conduct for it to approve the file access notice. This will have already have been decided if Case A applies.
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 tax agent is able to make representations initially to us, and then again directly to the tribunal. The decision by the tribunal to approve the issue of a file access notice is usually final and without the right of appeal. The only time when there can be an appeal against the tribunal decision is when the file access notice is issued to a person other than the tax agent. That other person can appeal against the file access notice on the grounds that compliance is unduly onerous, see CH183000+.