A dispute between you and us may arise in relation to whether a document requested in the information notice is privileged (that is, subject to legal professional privilege).
The tribunal will decide the matter upon receipt of an application. Different procedures apply and must be followed depending on whether the information notice was given during correspondence or during an inspection of premises (see below).
The dispute about whether the document or information is privileged may be settled at any time before the tribunal hearing by agreement (in writing or otherwise) between you and us.
As long as you comply with either procedure as set out in The Revenue Scotland and Tax Powers Act (Privileged Communications) Regulations 2015 you will be treated as having complied with the information notice in relation to the disputed documents, until such time as either: a) the tribunal decides the status of the document, or b) until an agreement has been reached between you and us.
If, during either procedure, you fail to comply with any requirement then we may follow the usual procedures for charging penalties where a person has not complied with an information notice (see RSTP3015).
In this section of guidance:
- ‘you’ means a person given a taxpayer notice (see RSTP2004), a person given a third party notice (see RSTP2005) or a person who is acting on behalf of such a taxpayer or third party in relation to an information notice; and
- working day’ means any day except a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday as defined by section 1 of the Bank and Financial Dealings Act 1971.
Procedure where information notice in dispute is given in correspondence
If the dispute arises in correspondence:
- you must give us a list of the disputed documents required by the information notice, with a description of the nature and content of each such document. If the description itself would cause a dispute over privilege then the description may be omitted.
- The list must be given at a reasonable time agreed between you and us but no later than 20 working days from the date the document(s) and/or information was/were required by the notice;
- within 20 working days of receiving the list of disputed documents from you, we must notify you which documents we require to be produced and which (if any) documents on the list we consider are not privileged; and
- after receiving notification about our view on the disputed documents, you must apply to the tribunal to decide the matter. The application must include copies of all the disputed documents.
The application must be made within a reasonable time agreed between you and us but no later than 20 working days of the date the notification was given.
Procedure where information notice in dispute is given during an inspection
If the dispute arises during an inspection:
- on receipt of the information notice, you must indicate to us (that is, the officer carrying out the inspection) which document(s) required by the information notice is or are in dispute;
- you must place the disputed document(s), or a copy of the document(s), in an appropriate container which prevents the contents of the document(s) being visible;
- the container must be sealed, labelled, signed by you and countersigned by us, before then being given into our custody; and
- we must then make an application to the tribunal to consider and resolve the dispute (and give you a copy of this application) and at the same time deliver the container to the tribunal (with the seal intact). The application and delivery of the container must be made within 42 working days of us taking custody of the container.
Resolution of the dispute by the tribunal upon receipt of application
If the dispute is not settled by agreement, once the tribunal receives the application it will arrange a hearing to decide the matter. The tribunal will decide whether, and to what extent, the document is or is not privileged and will direct which part(s) of the document (if any) shall be disclosed.
The tribunal will notify all parties of its decision and must ensure that any document (or copy of a document) in dispute is not inappropriately disclosed to any person during the tribunal’s consideration of the status of the document.
There is no right of appeal against a decision of the tribunal in relation to legal professional privilege. You will however still have a right of appeal against any penalty charged for not complying with an information notice.