INTM604000 - Transfer of assets abroad: Information powers: Restrictions on particulars to be provided by solicitors
Where a solicitor’s client does not consent to particulars being supplied then, in accordance with ITA07/S749, the solicitor is required only to:
- confirm that he is, or was, acting on behalf of the client, and
- supply the client’s name and address along with that of any ‘relevant person’.
‘Relevant person’ is defined within the legislation and includes:
- settlors
- transferors
- transferees
- persons abroad
- persons concerned in any ‘associated operations’ (see INTM600300).
It also includes bodies incorporated or resident outside the UK, for which the solicitor has done anything in their formation or management. The latter requirement is limited to companies which, if they had been incorporated in the UK, would be close companies and which are not companies whose business consists wholly or mainly of the carrying on of a trade.
Where a solicitor does anything in connection with a settlement as a result of which income becomes payable to a person abroad, or the execution of the trusts of any such settlement (in Scotland, the purpose of the settlement), the settlor and that person are relevant persons. Settlor and settlement are as defined in ITTOIA05/S620.
A solicitor is not treated as having taken part in a transaction merely because of giving professional advice to a client about it. HMRC’s view is that the introduction of a client to anyone responsible for establishing an overseas entity does not constitute professional advice (see INTM603860).
A solicitor is not privileged from disclosing the name and address of the beneficial owner of shares held as nominee.
If it is claimed that legal privilege prevents the solicitor from providing particulars required by a Notice served under ITA07/S748, then this should be referred to the technical specialist in Personal Tax International, Liverpool for advice (see INTM604440).
Where a barrister claims that he is protected by ITA07/S749, particular care should be taken following the High Court decision in R v CIR ex parte Goldberg ([1988] BTC 178), in respect of TMA70/S20 Notices served on a leading QC. The judges ruled that documents had come into existence only for the purpose of obtaining legal advice from the QC and were protected by professional privilege.
Any attempt to obtain information from a barrister by way of a formal Notice should first be discussed with the technical specialist in Personal Tax International, Liverpool (see INTM604440).