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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 | 5 |
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 | 10 |
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 | 15 |
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 | 20 |
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. | 25 |
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. | 30 |
(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. | 35 |
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 |
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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. | 5 |
(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 | 10 |
“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 | 15 |
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. | 20 |
(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, | 25 |
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. | 30 |
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. | 35 |
(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. | 40 |
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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 | 5 |
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; | 10 |
(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. | 15 |
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. | 20 |
(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 | 25 |
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 | 35 |
(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). | |
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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 | 5 |
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 | 10 |
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— | 15 |
(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 | 20 |
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 | 25 |
(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. | 30 |
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 | 35 |
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 | 40 |
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— | |
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(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. | 25 |
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 | 30 |
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 | 35 |
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 | |
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(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; | 5 |
(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 | 10 |
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 | 15 |
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— | 20 |
(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— | 25 |
(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. | 40 |
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 | 45 |
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(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; | 20 |
(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; | 25 |
(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, | 40 |
(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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