Information & Inspection Powers: Conditions and safeguards: Restrictions: Tax advice: further conditions to consider
Even if the tax advice was given by someone other than a legal professional, see CH22266, you can only require the tax advice information from the person if the following conditions are met.
See CH22270 for the action to take when you have considered these conditions.
If it is reasonable to think that the tax advice information being requested is, or may be, relevant to the tax position then you can require it. You may need to demonstrate to the tribunal why you believed the information was reasonably required at an appeal hearing.
Tax advice information may be relevant where
- there is a purpose test in the legislation,
- you wish to consider purposive construction of legislation or to look at the reality of a transaction or
- the arrangements do not comply with anti-avoidance rules including the General Anti-Avoidance Rule (GAAR).
You must consider whether the request for tax advice information is proportionate to the tax at risk and consistent with challenges in similar cases.
If your case is a lead case, obtaining full evidence will allow other cases to be challenged and so it is likely that an information notice will be both proportionate and a priority.
You must consider whether the compliance burden and, in particular, the scale of intrusion is proportionate to the public interest (in terms of duty at risk in your case and those which are similar) that will be served by obtaining the documents. For example, if you are requiring a large volume of documentation, you should consider whether this is proportionate or whether a smaller sample could provide the evidence you require. Even in an avoidance context volumes of ‘advice on tax law’ documents are likely to be small.
You should also take into account factors such as levels of cooperation, honesty, openness and transparency. Sampling may not be appropriate where, for example, there are indicators of any misrepresentation of transactions or you suspect that, in avoidance, standards of implementation may vary.
If the information you want to request is more than 6 years old it may no longer exist so consider whether there is any evidence that the information required is still in existence. This may be difficult to do and an absence of evidence should not itself prevent you requiring old information, subject to the Authorised Officer’s approval for documents that are over 6 years old at the date of the notice.
Power or possession
There should be a realistic expectation that the material is in the person’s possession or power to get it. Normally we seek such material from the person but subject to this guidance and the protection for material in the hands of tax advisers it may be possible to require information from the adviser or a third party, for example a lender if the material was copied with say a loan application.