Working the enquiry: meetings: spouses and partners confidentiality
When consent to disclose the information has been given
Unless you have agreed to have a joint meeting, see EM1852, you should not normally ask a taxpayer’s spouse or partner directly for information that is relevant to your taxpayer. You should normally ask your taxpayer to approach their spouse or partner for the information first.
You may however have to approach the taxpayer’s spouse, civil partner or domestic partner directly when you need to verify the information, or because it is complex.
When you do have to approach your taxpayer’s spouse or partner directly, they will normally co-operate fully in providing you with the information you require to complete your enquiry. You should however always obtain the consent of each relevant party before information that has been given by one party is shared with the other, see EM1854.
When considering information provided by a spouse or partner, the default position is to treat this with the same level of confidentiality as any other information provided by a third party. When consent has been given, you can however freely share information between the two parties without having to treat this as information from a Human Intelligence source. This is because the information will be of joint interest and there will be no question about having to conceal the identity of the person providing the information.
When consent to disclose the information has not been given
When consent has not been given to disclose the information to a spouse or partner you should in general handle the information following the guidance at EM1895. Information that has not been obtained as a result of a compliance check or using information powers should in these circumstances be treated as information from a Human Intelligence source.
There will however be some limited circumstances when you may be able to disclose information form the spouse or partner without their authority. These will be some situations when
- the information has been obtained directly as a result of an enquiry or other compliance check into the spouse’s or partner’s tax affairs
- the information has been obtained using third party information powers.
When you obtain information of joint interest as a result of an enquiry or compliance check into your taxpayer’s spouse’s or partner’s tax affairs, you should tell them that you may need to disclose this to their spouse or partner if it is relevant to their partner’s liability and we need to check their tax affairs. You should however ask whether any of this is of a sensitive nature. How you should handle this type of information is explained below.
Remember that you can only disclose information obtained as a result of an enquiry or compliance check when it is
- relevant to the enquiry into the tax affairs of their spouse or partner and
- the disclosure is necessary and proportionate.
Where the spouse or partner has refused to disclose the information you may have to obtain it using a third party information notice, see CH23600+. The only ground of appeal against a third party notice is that it would be unduly onerous for the third party to comply with the notice. The recipient of the notice may however ask you not to disclosure some of the information to their spouse or partner because it is of a sensitive nature.
Handling sensitive information
Before you disclose this type of information you must critically consider the reasons why the spouse or partner considers it to be sensitive and whether it is absolutely necessary to do so. At one extreme the spouse or partner may have genuine reason to believe that disclosure could make them subject to domestic violence and, at the other extreme, the explanation may be an attempt to help their spouse or partner to evade tax.
When you suspect the latter you will have to evaluate what you have been told in the light of what you know of both parties. You will need to consider whether the explanation is capable of corroboration before you accept it.
There are other situations where the information is likely to cause particular embarrassment to the spouse or partner. An example might be capital that the spouse or partner claims to have been gifted by a lover. You should test such an explanation in the same way you would test any explanation of unexplained capital. If you are not satisfied with the explanation, and there is no obvious source, you will have to assume that the capital came from your taxpayer and it will not be necessary to disclose their spouse’s or partner’s explanation, you would simply include the amounts as gifts in the capital statement or means test.
Before using any sensitive information you should tell the spouse or partner what you intend to disclose, such as
- gifts alleged to have been given by your taxpayer
- capital for which the spouse or partner has no obvious, credible or stated source and that you believe came from your taxpayer.
If you believe that the information is unusually sensitive, likely to cause particular embarrassment or result in domestic violence, then consult Central Policy - Information Strategy before making any disclosure.
If you do need to use information provided by a spouse or partner at an appeal hearing, you will need to bear in mind the Rules of Evidence and the possibility that you may be required to `prove’ the information in evidence by calling the spouse or partner as a witness. In that event, seek advice from Central Policy, Tax Administration Advice