RSTP2008 - Tribunal approval of a taxpayer or third party notice

We may apply to the tribunal to approve the giving of a taxpayer notice (see RSTP2004) or third party notice (see RSTP2005). Specific rules regarding tribunal approval also apply to identity unknown (see RSTP2006) and identification notices (see RSTP2007).

An application to the tribunal to approve the giving of a taxpayer or third party notice can be made without notice. This means that any person affected is not told about it. You cannot attend or make representations at the tribunal hearing. However, you may make representations to us which we must present to the tribunal for consideration (see conditions B and C below).

The tribunal can generally only give its approval to the giving of a taxpayer notice if each of conditions A to C below are met or, in the case of a third party notice, conditions A to D below are met:

• Condition A: the tribunal is satisfied that, in the circumstances, we are justified in giving the notice;
• Condition B: you have been told that the information and/or documents referred to in the notice are required and have been given a reasonable opportunity to make representations to us;
• Condition C: the tribunal has been given a summary of any representations made by you (this should fully and accurately reflect the tone and content of the representations – if a written representation has been made then this should also be provided to the tribunal so the tribunal members can draw their own conclusions about the tone and content);
• Condition D: in the case of a third party notice, the taxpayer* has been given a summary of the reasons why we require the information and documents.
  • Condition D does not apply where a third party notice is given to:
    • a parent undertaking** to check the tax position of more than one of its subsidiary undertakings**; or
    • a partner in a partnership for the purpose of checking the tax position of one or more of the other partners.

In other words, in either of these two cases, the person(s) whose tax position is being investigated will not be given a summary of the reasons why we require the information and/or documents specified in the third party notice.

* i) in the case of a notice given to a person other than one of the partners in a partnership, for the purposes of checking the tax position of more than one partner, ‘taxpayer’ means ‘at least one of the partners’

ii) in the case of a notice given to any person for the purposes of investigating the tax position of a parent undertaking** and any of its subsidiary undertakings**, ‘taxpayer’ means ‘parent undertaking’

Circumstances where conditions B to D do not need to be met

Conditions B to D do not have to be met where the tribunal is satisfied that carrying out any of those actions might prejudice the assessment or collection of tax.

‘Prejudice’ in this context means that carrying out any of the actions in conditions B to D could create a risk, or serious risk, to the effective assessment or collection of tax. Such situations could include risks of:

• tipping off a person suspected of committing a criminal offence;
• collusion with or intimidation of a third party;
• the person’s flight or disappearance;
• the alienation of assets; and
• the destruction of evidence.

** References to ‘parent undertaking’, ‘subsidiary undertaking’ and ‘undertaking’ have the meanings given in sections 1161 and 1162 of, and schedule 7 to, the Companies Act 2006.

RSTPA 2014 sections 125 and 128-129