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Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 4 — Restrictions on powers under Parts 1 to 3

    219

 

When notice may be given

  15      (1)      No notice under paragraph 14 may be given for so long as an appeal is

pending against the conviction or penalty.

          (2)      For the purposes of sub-paragraph (1)—

              (a)             an appeal is treated as pending (where one is competent but has not

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been brought) until the expiration of the time for bringing it or, in the

case of a conviction in Scotland, until the expiration of 28 days from

the date of conviction; and

              (b)             references to an appeal include a further appeal, but in relation to the

imposition of a penalty do not include an appeal against the amount

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of the penalty.

          (3)      No notice may be given under paragraph 14 by reference to a person’s

conviction or the imposition on him of a penalty after the end of the period

of twelve months beginning with the date on which the power to give such

a notice was first exercisable in his case by virtue of that conviction or

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penalty.

Requirement of consent of appropriate judicial authority

  16      (1)      The consent of the appropriate judicial authority is required for the giving of

a notice under paragraph 14.

          (2)      Consent shall not be given unless that authority is satisfied that in all the

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circumstances the officer is justified in proceeding under that paragraph.

          (3)      The appropriate judicial authority is—

              (a)             in England and Wales, a circuit judge;

              (b)             in Scotland, a sheriff;

              (c)             in Northern Ireland, a county court judge.

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Contents of notice

  17      (1)      A notice under paragraph 14 must—

              (a)             specify or describe the documents to which it relates, and

              (b)             require the documents to be delivered within such time as may be

specified in the notice.

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          (2)      The period specified for complying with the notice must not be less than 30

days after the date of the notice.

Power to take copies of documents etc

  18       The officer to whom documents are delivered in pursuance of a notice under

paragraph 14 may take copies of them or of extracts from them.

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Part 4

Restrictions on powers under Parts 1 to 3

Introduction

  19       The provisions of Parts 1 to 3 of this Schedule have effect subject to the

following restrictions.

40

 

 

Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 4 — Restrictions on powers under Parts 1 to 3

    220

 

Personal records or journalistic material

  20      (1)      Parts 1 to 3 of this Schedule do not apply—

              (a)             to documents that are personal records or journalistic material, or

              (b)             to information contained in any personal records or journalistic

material.

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          (2)      In sub-paragraph (1)—

               “personal records” means personal records as defined in section 12 of

the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern

Ireland, in Article 14 of the Police and Criminal Evidence (Northern

Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)); and

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               “journalistic material” means journalistic material as defined in

section 13 of that Act or, in Northern Ireland, in Article 15 of that

Order.

Documents or information relating to pending appeal

  21      (1)      A notice under Part 1 of this Schedule does not oblige a person to deliver

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documents or provide information relating to the conduct of any pending

appeal by him.

          (2)      A notice under Part 2 of this Schedule does not oblige a person to deliver or

make available documents relating to the conduct of a pending appeal by

the taxpayer.

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          (3)      A notice under Part 3 of this Schedule does not oblige a person to deliver

documents relating to the conduct of a pending appeal by the client.

          (4)      An “appeal” here means an appeal relating to tax.

Barristers, advocates and solicitors

  22      (1)      A notice under Part 2 or 3 of this Schedule may not be given to a barrister,

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advocate or solicitor by an authorised officer of the Board but only by the

Board.

          (2)      Accordingly, in relation to a barrister, advocate or solicitor, the references in

those Parts to an authorised officer of the Board shall be read as references

to the Board.

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Provision of copies instead of original documents

  23      (1)      To comply with a notice under Part 1 or 3 of this Schedule, and as an

alternative to delivering documents to comply with a notice under Part 2 of

this Schedule, copies of documents may be delivered instead of originals.

          (2)      The copies must be photographic or otherwise by way of facsimile.

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          (3)      If so required by the officer (or, as the case may be, the Board) in the case of

any documents specified in the requirement, the originals must be made

available for inspection by a named officer of the Board.

          (4)      Failure to comply with such a requirement counts as failure to comply with

the notice.

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Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 4 — Restrictions on powers under Parts 1 to 3

    221

 

Documents originating more than six years before date of notice

  24      (1)      A notice under Part 2 of this Schedule does not oblige a person to deliver or

make available a document the whole of which originates more than six

years before the date of the notice.

          (2)      Sub-paragraph (1) does not apply where the notice is so expressed as to

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exclude the restrictions of that sub-paragraph.

          (3)      A notice may only be so expressed if—

              (a)             in the case of a notice given by an authorised officer, the General or

Special Commissioner giving consent to the notice has also given

approval to the exclusion;

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              (b)             in the case of a notice given by the Board, they have applied to a

General or Special Commissioner for, and obtained, that approval.

          (4)      Approval shall only be given if the Commissioner is satisfied, on application

by the officer or the Board, that tax has been, or may have been, lost to the

Crown owing to the fraud of the taxpayer.

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Documents subject to legal privilege

  25      (1)      A notice under Part 2 or 3 of this Schedule does not oblige a barrister,

advocate or solicitor to deliver or make available, without his client’s

consent, any document with respect to which a claim to legal privilege could

be maintained.

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          (2)      “Legal privilege” here has the same meaning as in paragraph 35 of this

Schedule.

Documents belonging to auditor or tax adviser

  26      (1)      A notice under Part 2 of this Schedule—

              (a)             does not oblige a person who has been appointed as auditor for the

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purposes of any enactment to deliver or make available documents

that are his property and were created by him or on his behalf for or

in connection with the performance of his functions under that

enactment, and

              (b)             does not oblige a tax adviser to deliver or make available documents

30

that are his property and consist of relevant communications (as

defined below).

          (2)      “Relevant communications” means communications between the tax

adviser and—

              (a)             a person in relation to whose tax affairs he has been appointed, or

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              (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.

          (3)      In this paragraph “tax adviser” means a person appointed to give advice

about the tax affairs of another person (whether appointed directly by that

40

other person or by another tax adviser of his).

          (4)      This paragraph has effect subject to paragraph 27 (documents belonging to

auditor or tax adviser: information to be disclosed).

 

 

Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 5 — Powers of board to call for documents or information

    222

 

Documents belonging to auditor or tax adviser: information to be disclosed

  27      (1)      This paragraph applies where a notice is given under Part 2 of this Schedule

relating to a document that falls within paragraph 26 (documents belonging

to auditor or tax adviser) but contains—

              (a)             information explaining any information, return or other document

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that the person to whom the notice is given has, as tax accountant,

assisted any client of his in preparing for, or for delivering to, the

officer or the Board, or

              (b)             in the case of a notice under paragraph 11 (notice in respect of

unnamed taxpayer or taxpayers), information as to the identity or

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address of any taxpayer to whom the notice relates or any person

who has acted on behalf of any such person,

                   that has not otherwise been made available to the Inland Revenue.

          (2)      For this purpose information is regarded as having been made available to

the Inland Revenue if it is contained in some other document and—

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              (a)             that other document, or a copy of it, has been delivered to the officer

or the Board, or

              (b)             that other document has been inspected by an officer of the Board.

          (3)      Where this paragraph applies the person to whom the notice is given must,

if he does not deliver the document or make it available for inspection in

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accordance with the notice—

              (a)             deliver to the officer (or, as the case may be, the Board) a copy

(photographic or otherwise by way of facsimile) of any parts of the

document that contain such information as is mentioned in sub-

paragraph (1), and

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              (b)             if so required by the officer (or, as the case may be, the Board), make

available for inspection by a named officer of the Board such parts of

the original document as contain such information.

          (4)      Failure to comply with any such requirement counts as a failure to comply

with the notice.

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Part 5

Powers of board to call for documents or information

Notice requiring delivery of documents or provision of information

  28      (1)      The Board may by notice in writing require a person—

              (a)             to deliver to a named officer of the Board such documents as are in

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the person’s possession or power and (in the Board’s reasonable

opinion) contain, or may contain, information relevant to—

                    (i)                   any tax liability to which the person is or may be subject, or

                    (ii)                  the amount of any such liability, or

              (b)             to provide to a named officer of the Board such information as the

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Board may reasonably require as being relevant to, or to the amount

of, any such liability.

          (2)      Notice under this paragraph shall not be given unless the Board have

reasonable grounds for believing—

 

 

Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 6 — Order of judicial authority for the delivery of documents

    223

 

              (a)             that the person to whom it relates may have failed, or may fail, to

comply with any provision of this Part of this Act, and

              (b)             that any such failure is likely to have led, or to lead, to serious

prejudice to the proper assessment or collection of tax.

Contents of notice

5

  29       A notice under paragraph 28 must—

              (a)             specify or describe the documents or information to which it relates,

and

              (b)             require the documents to be delivered or the information to be

provided within such time as may be specified in the notice.

10

Power to take copies of documents etc

  30       The person to whom documents are delivered, or to whom information is

provided, in pursuance of a notice under paragraph 28 may take copies of

them or of extracts from them.

Exclusion of personal records or journalistic material

15

  31      (1)      This Part of this Schedule does not apply to documents that are personal

records or journalistic material.

          (2)      In sub-paragraph (1)—

               “personal records” means personal records as defined in section 12 of

the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern

20

Ireland, in Article 14 of the Police and Criminal Evidence (Northern

Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)); and

               “journalistic material” means journalistic material as defined in

section 13 of that Act or, in Northern Ireland, in Article 15 of that

Order.

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Part 6

Order of judicial authority for the delivery of documents

Order for the delivery of documents

  32      (1)      The appropriate judicial authority may make an order under this paragraph

if satisfied on information on oath given by an authorised officer of the

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Board—

              (a)             that there is reasonable ground for suspecting that an offence

involving serious fraud in connection with, or in relation to, stamp

duty land tax has been or is about to be committed, and

              (b)             that documents that may be required as evidence for the purposes of

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any proceedings in respect of such an offence are or may be in the

power or possession of any person.

          (2)      An order under this paragraph is an order requiring the person who appears

to the authority to have in his possession or power the documents specified

or described in the order to deliver them to an officer of the Board within—

40

              (a)             ten working days after the day on which notice of the order is served

on him, or

 

 

Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 6 — Order of judicial authority for the delivery of documents

    224

 

              (b)             such shorter or longer period as may be specified in the order.

                   For this purpose a “working day” means any day other than a Saturday,

Sunday or public holiday.

          (3)      The appropriate judicial authority is—

              (a)             in England and Wales, a circuit judge;

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              (b)             in Scotland, a sheriff;

              (c)             in Northern Ireland, a county court judge.

          (4)      Where in Scotland the information relates to persons residing or having

places of business at addresses situated in different sheriffdoms—

              (a)             an application for an order may be made to the sheriff for the

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sheriffdom in which any of the addresses is situated, and

              (b)             where the sheriff makes an order in respect of a person residing or

having a place of business in his own sheriffdom, he may also make

orders in respect of all or any of the other persons to whom the

information relates (whether or not they have an address within the

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sheriffdom).

          (5)      In sub-paragraph (1) an “authorised officer of the Board” means an officer of

the Board authorised by the Board for the purposes of this Part of this

Schedule.

          (6)      The Inland Revenue may make provision by regulations as to—

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              (a)             the procedures for approving in any particular case the decision to

apply for an order under this Part of this Schedule, and

              (b)             the descriptions of officer by whom such approval may be given.

Notice of application for order

  33      (1)      A person is entitled—

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              (a)             to notice of the intention to apply for an order against him under

paragraph 32, and

              (b)             to appear and be heard at the hearing of the application,

                   unless the appropriate judicial authority is satisfied that this would

seriously prejudice the investigation of the offence.

30

          (2)      The Inland Revenue may make provision by regulations as to the notice to

be given, the contents of the notice and the manner of giving it.

Obligations of person given notice of application

  34      (1)      A person who has been given notice of intention to apply for an order under

paragraph 32 must not—

35

              (a)             conceal, destroy, alter or dispose of any document to which the

application relates, or

              (b)             disclose to any other person information or any other matter likely to

prejudice the investigation of the offence to which the application

relates.

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                   This is subject to the following qualifications.

          (2)      Sub-paragraph (1)(a) does not prevent anything being done—

              (a)             with the leave of the appropriate judicial authority,

              (b)             with the written permission of an officer of the Board,

              (c)             after the application has been dismissed or abandoned, or

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Finance Bill
Schedule 13 — Stamp duty land tax: information powers
Part 6 — Order of judicial authority for the delivery of documents

    225

 

              (d)             after any order made on the application has been complied with.

          (3)      Sub-paragraph (1)(b) does not prevent a professional legal adviser from

disclosing any information or other matter—

              (a)             to, or to a representative of, a client of his in connection with the

giving by the adviser of legal advice to the client, or

5

              (b)             to any person—

                    (i)                   in contemplation or, or in connection with, legal proceedings,

and

                    (ii)                  for the purposes of those proceedings.

                   This sub-paragraph does not apply in relation to any information or other

10

matter that is disclosed with a view to furthering a criminal purpose.

          (4)      A person who fails to comply with the obligation in sub-paragraph (1)(a) or

(b) may be dealt with as if he had failed to comply with an order under

paragraph 32.

Exception of items subject to legal privilege

15

  35      (1)      This Part of this Schedule does not apply to items subject to legal privilege.

          (2)      Items “subject to legal privilege” means—

              (a)             communications between a professional legal adviser and his client

or any person representing his client made in connection with the

giving of legal advice to the client;

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              (b)             communications between a professional legal adviser and his client

or any person representing his client, or between such an adviser or

his client or any such representative and any other person, made in

connection with or in contemplation of legal proceedings and for the

purposes of such proceedings;

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              (c)             items enclosed with or referred to in such communications and

made—

                    (i)                   in connection with the giving of legal advice, or

                    (ii)                  in connection with or in contemplation of legal proceedings

and for the purposes of such proceedings,

30

                              when they are in possession of a person entitled to possession of

them.

          (3)      Items held with the intention of furthering a criminal purpose are not subject

to legal privilege.

Resolution of disputes as to legal privilege

35

  36      (1)      The Inland Revenue may make provision by regulations for the purposes of

this Part of this Schedule for the resolution of disputes as to whether a

document, or part of a document, is an item subject to legal privilege.

          (2)      The regulations may, in particular, make provision as to—

              (a)             the custody of the document whilst its status is being decided,

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              (b)             the appointment of an independent, legally qualified person to

decide the matter,

              (c)             the procedures to be followed, and

              (d)             who is to meet the costs of the proceedings.

 

 

 
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