Third-party information notice hearing must remain private

In Kandore Limited & 19 Others v HMRC [2021] EWCA Civ 1082, the Court of Appeal agreed that the First Tier Tax Tribunal (FTT) did not have the power to allow the taxpayers being investigated to participate in a hearing to approve third-party information notices. The legislation prevented it and a public hearing was not appropriate.

HMRC opened enquiries into the Corporation Tax returns of three taxpayer third-party companies.

• It was concerned about the robustness of the companies’ financial records and informal information requests were made to the companies' directors and shareholders, which were refused.
• HMRC applied to the Tribunal for approval of formal Schedule 36 third-party notices addressed to a large number of individuals including directors and shareholders, the 'Third-parties'.
• The Companies and Third parties, taxpayers asked that the hearing should be 'inter partes' i.e. held in public and with them able to participate in the hearing. HMRC refused.

The First Tier (FTT) Tribunal found that neither party had no right to be given notice of or to attend and make representations at, a hearing of HMRC’s Schedule 36 application.

The Upper Tribunal (UT) agreed that the FTT had no power to hold an inter partes hearing as Schedule 36 excludes this possibility. The UT said that whilst the FTT could hold such a hearing in public, and it had made an error in law in deciding it could not, in this case, a public hearing would not have been appropriate. The UT, therefore, granted permission to appeal to the Court of Appeal.

The Court of Appeal agreed that the FTT does not have the power to hold an inter partes hearing when HMRC applies to issue a third party notice under Schedule 36.

• The purpose of the Schedule 36 rules is to assist HMRC to collect documents as part of their investigations. The process for allowing HMRC to seek the approval of the FTT for a third-party notice is a 'judicial monitoring' of a step in an investigation. It is not like an adjudication in a dispute between parties to litigation and is not intended to be an adversarial process.
• The private affairs of taxpayers are discussed at the preliminary stage of an investigation and it may not always be in the public interest for those to be discussed in public.
• Sometimes an investigation will end with no further action being taken. There was a risk of injustice if questions had been publicly raised about whether the taxpayer had, for example, been avoiding or evading tax when they had not been doing so.

Comments

The decision is no surprise given the intention of the legislation, it confirms that taxpayers have no right to challenge HMRC applications for third-party notices that are made to the FTT. They also cannot hear HMRC’s representations to the Tribunal or make their own representations in person though they can provide these to the tribunal via HMRC.

There are situations where a third party may appeal a information notice, these are included in our note Sch 36 third party notices.

Useful guides on this topic

Sch 36 third party notices
When can HMRC require a third party to provide information or produce a document in relation to a taxpayer? Who can appeal a notice? What rights does the taxpayer have?

Sch 36 Information Notices
What is a Schedule 36 Information Notice? When can HMRC issue one? What rights does the taxpayer have when an information notice is issued?

Sch 36 notice: no further appeal
When can a Schedule 36 notice be appealed? What jurisdiction do the courts have?

How to appeal an HMRC decision
Disagree with a HMRC decision? How to appeal, what type of decision can you appeal, what are your different options when you disagree with HMRC? What are the key steps in making an appeal?

External link

Kandore Limited & 19 Others v HMRC [2021] EWCA Civ 1082