Part 4Restrictions on powers
Documents not in person’s possession or power
18An information notice only requires a person to produce a document if it is in the person’s possession or power.
Types of information
19(1)An information notice does not require a person to provide or produce—
(a)information that relates to the conduct of a pending appeal relating to tax or any part of a document containing such information, or
(b)journalistic material (as defined in section 13 of the Police and Criminal Evidence Act 1984 (c. 60)) or information contained in such material.
(2)An information notice does not require a person to provide or produce personal records (as defined in section 12 of the Police and Criminal Evidence Act 1984) or information contained in such records, subject to sub-paragraph (3).
(3)An information notice may require a person—
(a)to produce documents, or copies of documents, that are personal records, omitting any information whose inclusion (whether alone or with other information) makes the original documents personal records (“personal information”), and
(b)to provide any information contained in such records that is not personal information.
Old documents
20An information notice may not require a person to produce a document if the whole of the document originates more than 6 years before the date of the notice, unless the notice is given by, or with the agreement of, an authorised officer.
Taxpayer notices
21(1)Where a person has made a tax return in respect of a chargeable period under section 8, 8A or 12AA of TMA 1970 (returns for purpose of income tax and capital gains tax), a taxpayer notice may not be given for the purpose of checking that person’s income tax position or capital gains tax position in relation to the chargeable period.
(2)Where a person has made a tax return in respect of a chargeable period under paragraph 3 of Schedule 18 to FA 1998 (company tax returns), a taxpayer notice may not be given for the purpose of checking that person’s corporation tax position in relation to the chargeable period.
(3)Sub-paragraphs (1) and (2) do not apply where, or to the extent that, any of conditions A to D is met.
(4)Condition A is that a notice of enquiry has been given in respect of—
(a)the return, or
(b)a claim or election (or an amendment of a claim or election) made by the person in relation to the chargeable period in respect of the tax (or one of the taxes) to which the return relates (“relevant tax”),
and the enquiry has not been completed.
(5)In sub-paragraph (4), “notice of enquiry” means a notice under—
(a)section 9A or 12AC of, or paragraph 5 of Schedule 1A to, TMA 1970, or
(b)paragraph 24 of Schedule 18 to FA 1998.
(6)Condition B is that an officer of Revenue and Customs has reason to suspect that—
(a)an amount that ought to have been assessed to relevant tax for the chargeable period may not have been assessed,
(b)an assessment to relevant tax for the chargeable period may be or have become insufficient, or
(c)relief from relevant tax given for the chargeable period may be or have become excessive.
(7)Condition C is that the notice is given for the purpose of obtaining any information or document that is also required for the purpose of checking that person’s VAT position.
(8)Condition D is that the notice is given for the purpose of obtaining any information or document that is required (or also required) for the purpose of checking the person’s position as regards any deductions or repayments referred to in paragraph 64(2) (PAYE etc).
Deceased persons
22An information notice given for the purpose of checking the tax position of a person who has died may not be given more than 4 years after the person’s death.
Privileged communications between professional legal advisers and clients
23(1)An information notice does not require a person—
(a)to provide privileged information, or
(b)to produce any part of a document that is privileged.
(2)For the purpose of this Schedule, information or a document is privileged if it is information or a document in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications as between client and professional legal adviser, could be maintained in legal proceedings.
(3)The Commissioners may by regulations make provision for the resolution by the First-tier Tribunal of disputes as to whether any information or document is privileged.
(4)The regulations may, in particular, make provision as to—
(a)the custody of a document while its status is being decided, and
(b)the procedures to be followed.
Auditors
24(1)An information notice does not require a person who has been appointed as an auditor for the purpose of an enactment—
(a)to provide information held in connection with the performance of the person’s functions under that enactment, or
(b)to produce documents which are that person’s property and which were created by that person or on that person’s behalf for or in connection with the performance of those functions.
(2)Sub-paragraph (1) has effect subject to paragraph 26.
Tax advisers
25(1)An information notice does not require a tax adviser—
(a)to provide information about relevant communications, or
(b)to produce documents which are the tax adviser’s property and consist of relevant communications.
(2)Sub-paragraph (1) has effect subject to paragraph 26.
(3)In this paragraph—
“relevant communications” means communications between the tax adviser and—
(a)a person in relation to whose tax affairs he has been appointed, or
(b)any other tax adviser of such a person,
the purpose of which is the giving or obtaining of advice about any of those tax affairs, and
“tax adviser” means a person appointed to give advice about the tax affairs of another person (whether appointed directly by that person or by another tax adviser of that person).
Auditors and tax advisers: supplementary
26(1)Paragraphs 24(1) and 25(1) do not have effect in relation to—
(a)information explaining any information or document which the person to whom the notice is given has, as tax accountant, assisted any client in preparing for, or delivering to, HMRC, or
(b)a document which contains such information.
(2)In the case of a notice given under paragraph 5, paragraphs 24(1) and 25(1) do not have effect in relation to—
(a)any information giving the identity or address of a person to whom the notice relates or of a person who has acted on behalf of such a person, or
(b)a document which contains such information.
(3)Paragraphs 24(1) and 25(1) are not disapplied by sub-paragraph (1) or (2) if the information in question has already been provided, or a document containing the information in question has already been produced, to an officer of Revenue and Customs.
27(1)This paragraph applies where paragraph 24(1) or 25(1) is disapplied in relation to a document by paragraph 26(1) or (2).
(2)An information notice that requires the document to be produced has effect as if it required any part or parts of the document containing the information mentioned in paragraph 26(1) or (2) to be produced.
Corresponding restrictions on inspection of business documents
28An officer of Revenue and Customs may not inspect a business document under Part 2 of this Schedule if or to the extent that, by virtue of this Part of this Schedule, an information notice given at the time of the inspection to the occupier of the premises could not require the occupier to produce the document.