In DAC Beachcroft LLP v HMRC [2018] TC 6704, the first tier tribunal (FTT) found that legal advice privilege (LAP) applied to conveyancing documents sought by HMRC during enquiries.
Following a disclosure under the Liechtenstein Disclosure Facility and to establishing location of the central management and control of a company, HMRC served a Schedule 36 FA 2008 third party information notice on the appellant's solicitors, requiring production of documents to establish the identity of properties bought by a client.
- The solicitors refused to provide the documents, saying they were protected by LAP
- It was agreed that the matter could be decided by the tribunal on the basis of written evidence. The solicitors sent copies of the documents they believed were covered by LAP.
The tribunal found that all the documents are subject to LAP, to the extent they either seek or give (or evidence the seeking or giving of) legal advice or are part of the “continuum aimed at keeping both [solicitor and client] informed so that advice may be sought and given as required'.
It concluded that the documents should therefore not be disclosed to HMRC without the client’s permission.
The tribunal gave a list of some documents, including correspondance with surveyors etc. that did not come within that scope and should therefore be disclosed to HMRC.
Useful guides
Permanent establishment and company residence
What makes a company non-resident? What are the tests for place of control and management?
Third party information notices
When can HMRC ask a third party for information about a taxpayer? What are the taxpayer's rights?
Information notices and enquiries
What are HMRC's powers to obtain information about taxpayers?
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