CH207325 - How to do a compliance check: establishing the facts: asking for information: person’s spouse or partner
A person’s partner or spouse may be prepared to supply voluntarily information which you need during your compliance check.
Whenever private side information is required you should consider the person’s rights of privacy under Article 8 HRA. When private documents are sought from a spouse or partner their rights are also in play. Such cases are particularly sensitive and you should review the position along the lines of EM1350 HRA.
In all cases you should record your consideration of this issue.
In smaller cases it may be sufficient to ask the person to make a statement of gifts and loans to or from their spouse or partner. Whether or not you can trust such a statement will depend upon your assessment of the person and what you already know about the case. You should make the person aware that you can verify the statement by approaching his or her spouse or partner, although usually it would not be necessary to do so.
If you require documents from the spouse or partner you should normally ask the person whose tax position you are checking to get the documents for you.
If you require an explanation from the spouse or partner it may not be practical to ask the person to approach them. You might think that the spouse’s or partner’s explanation the person could pass on to you is likely to be unreliable, or you need to verify facts independently. In those circumstances you would not want to ask the person to get the explanation from their spouse or partner.
If the private side is a material consideration, the information you will want from the spouse or partner is
- details of income and gains both taxable and non-taxable
- details of assets
- information about spending.
The purpose will be to see whether the spouse or partner has been receiving money from the person whose tax position you are checking, to calculate how pooled resources are spent or to verify claims that the spouse or partner has made payments to the person or into joint accounts.
Always address your enquiries to the spouse or partner. Never ask the person for such details; they are confidential to the third party. If the spouse or partner wishes to provide them through the person or the accountant acting, that is their decision.
You will be able to infer something, but not necessarily everything, about the spouse’s or partner’s assets from what you know of joint assets and the person’s contribution to them.
If the spouse or partner is also a partner in the business that you are checking your position is much stronger even if duties are nominal. You must still respect confidentiality; each party has a right to discuss their personal affairs separately.
However, any request for information can be made in the knowledge that you can give the spouse or partner a third party notice. You may want to seek the taxpayer’s approval to issue a 3rd party notice to an ex-partner or spouse. If a copy of the 3rd party notice is sent to the taxpayer in the exact form, you may breach GDPR by providing the taxpayer with their ex-partner or spouses address. In these cases, you should name the 3rd party but omit their private address.
Also, when sending the taxpayer agreed notice to the third party, you must name the taxpayer in the notice but should omit their private address.
For an excise information notice, see CH228000.