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HMRC internal manual

Compliance Handbook

From
HM Revenue & Customs
Updated
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How to do a compliance check: applying to tribunal for approval to give a Sch36 FA08 notice and preparing for the hearing: step 5 - preparing the hearing brief to accompany the application

You should prepare a brief to accompany the IIP20 application to the tribunal, see CH265060, for example:

Tribunal brief - Para 1 Sch36 (Word 69KB)
Tribunal brief - Para 2 Sch36 (Word 66KB)
Tribunal brief - Para 5 Sch36 (Word 71KB)

These are in a standard layout and the following detail should be included:

  • HMRC’s reference number
  • name, office address and telephone number of the officer making the application
  • the taxpayer’s name and address
  • the following wording, if the application is made without notice:

    • ‘This application is made under Rule 21 of The Tribunal Procedure (First-tier Tribunal Tax Chamber) rules. This is a ‘without notice’ application in accordance with Rule 19 of the First-tier Tribunal rules. Application is also made under Rule 6 for a direction under Rule 32 that the hearing be held in private on the grounds that, if the hearing were to be held in public, HMRC’s case may be prejudiced.’
  • an explanation of why you have applied for the application to be heard without notice and in private, see CH265080 
  • the statute under which you are making the application - for example:

    • details of which paragraph of Schedule 36 the application is made under and which it is to be issued under
    • if you wish the tribunal to disapply the requirements in Paragraphs 3(3) (c to e) of Schedule 36 to inform the recipient of the notice that the information and documents are required and give them reasonable opportunity to make representations, or in the case of a third party notice send the person a summary of reasons, you will have to satisfy the tribunal that taking this action might prejudice the assessment or collection of tax
    • when applying for a third party notice and you are asking the tribunal to disapply the requirement to name the taxpayer in the notice under Paragraph 3(5) of Schedule 36, you will have to satisfy the tribunal that naming the taxpayer might seriously prejudice the assessment or collection of tax
    • when you are asking the tribunal to disapply Paragraph 4 of Schedule 36 to send a copy of a Third Party notice to the taxpayer, you will have to satisfy the tribunal that taking the action might prejudice the assessment or collection of tax and demonstrate that you have the agreement of an authorised officer and include copies of the relevant statute
  • reference to any documents relevant to that legislation, such as necessary authorisations
  • background to the application including the reasons why you are seeking a tribunal approved application
  • a summary of the enquiries to this point, including demonstrating that you have met the statutory requirements (unless you have applied for any of these items to be disapplied) by including

    • a copy of the letter of opportunity advising the person to whom the notice is to be addressed that the information or documents referred to in the notice are required and giving them a reasonable opportunity to make any representations to the tribunal
    • for Third Party notices, proof that the taxpayer has been provided with a summary of the reasons why HMRC reasonably requires the documents and information to check their tax position
    • any representations from the person on whom the notice will be served
  • in the case of a Third Party notice you must also provide any representations made by the person whose tax position you are checking, for example those provided by the person on IIP03 (Form)
  • the grounds for making the application to the tribunal (that is, the information you require and why it is reasonably required to check the tax position). You should be prepared to justify why each item on the notice is reasonably required to check the ‘tax position’ in case the tribunal wishes to consider the notice item by item
  • HMRC’s response to taxpayer and third party representations, outlining where necessary why, despite these representations, HMRC believe that approval for the notice should be given
  • standard Human Rights information
  • conclusion (the result we seek)
  • a list of appendices to support the application.