Information and inspection powers: Schedule 36 FA 2008: scope of ‘documents’
It is not necessary to know that a document definitely exists, or that it is in the power or possession of the recipient of the notice, for it to be included in the notice. Documents may be ‘described’ without being individually identified in the notice. The appeal right, or alternatively the requirement for HMRC to satisfy the First-tier Tribunal that a notice is reasonable are essential protections against any possible or alleged abuse of power.
Case law relating to a predecessor provision, section 20 TMA 1970, established that it was not necessary to know that documents existed, in order to describe them in a notice. (See R v CIR ex parte Ulster Bank Ltd 69 TC 211, which on this point overturned the decision in R v O’Kane and others ex parte Northern Bank Ltd 69 TC 187.) Tax cases where the courts have given a ruling on the interpretation of previous legislation will not be authoritative in the interpretation of Schedule 36 powers. However, you may refer to them as a general guide to how the tribunal may think when considering similar situations in the use of Schedule 36 powers.