In Ismail Miah, Ala Uddin and Abdul Zalil v HMRC TC06175, the First Tier Tribunal (FTT) held that it did not have jurisdiction to close an enquiry opened under COP9.
HMRC uses Code of Practice 9 (COP9) where they suspect tax fraud, do not wish to initiate a criminal investigation, but do not want to close the door on so doing.
An enquiry was opened into the taxpayers’ affairs under COP9 in January 2016. They were given an opportunity to make a contractual disclosure, the window for which closed in March 2016 with no submission made, and HMRC issued an information notice under Sch 36 on 11 April.
The appellants objected to the information notice and requested closure of the enquiry then appealed to the FTT.
The FTT held that:
- COP9, as opposed to an enquiry under s9A TMA 1970, derives from HMRC’s general statutory powers. As such, no statutory provision grants the FTT power to supervise enquiries under COP9.
- The correct approach is to apply for judicial review at the Administrative Court
- Neither COP9 nor Sch 36 are bound by the normal enquiry window or discovery
- If the appellants believed HMRC were abusing their powers the correct approach was to seek judicial review.
Links
Ismail Miah, Ala Uddin and Abdul Zalil v HMRC [2017] UKFTT 0767 (TC)
Contractual disclosure facility CDF
