INTM603860 - Transfer of assets abroad: Information powers: Issuing a notice under ITA07/S748

The legislation provides that an Officer of HM Revenue and Customs may by Notice require any person to provide such particulars as the officer may reasonably require for the purposes of Chapter 2, Part 13 ITA 2007.

In most cases, as a first step, information required should be requested informally. However, sometimes it may be appropriate to issue a Notice without prior warning. In such cases care should be taken if there could be special circumstances such as ill health or age-related problems.

In preparing a Notice for issue, regard must be had to the following:

• the request is for particulars and not for documents (see INTM603880)
• the request must be reasonable and the person to whom the Notice is issued must be in a position to comply with the Notice
• an officer must state the time within which the particulars must be provided, and that time must be at least 30 days from the date the Notice is issued (see INTM603920)

The particulars which a person must provide if required to do so under the Notice include particulars about:

• transactions with respect to which the person is or was acting on behalf of others
• transactions which in the opinion of the officer should properly be investigated even though, in the person’s opinion, no liability to income tax arises in respect of either the income charge or benefits charge, and
• whether the person has taken or is taking part and, if so, what part in the transactions of a description specified in the notice.

Notices should not be unduly onerous, but it is important to tailor a Notice to the particular case and to be sure to include all particulars required, taking care to exclude those already provided.

The final draft Notice must always be considered by the technical specialist in Personal Tax International, Liverpool prior to authorisation (see INTM604440), to ensure that there is nothing in the Notice which might preclude penalty proceedings before the Tribunal or give rise to a judicial review.

The recipient of the Notice cannot be compelled to produce information which does not exist or, in the light of evidence held, that person is not able to produce.

The absence of formal accounts does not necessarily mean that management accounts or management information in a company’s records cannot be produced to comply with a suitably worded Notice. Notices should not normally go back more than 10 years.

A solicitor is not treated as having taken part in a transaction merely because of giving professional advice to a client about it. HMRC’s view is that the introduction of a client to anyone responsible for establishing an overseas entity does not constitute professional advice (see INTM604000).

A separate Notice should be sent to a wife, husband or civil partner if they have taken an active part (for example, as co-settlor, transferor, etc.) in any transaction under review. Care should be taken to ensure that the questions put to a wife, husband or civil partner do not involve any breach of confidentiality regarding their wife’s, husband’s or civil partner’s affairs.

To comply with the requirement of TMA70/S115, a Notice addressed to an individual must normally be sent to, or delivered at, the usual or last known place of residence. If it is known that the individual has left the last known place of residence, and the current residence cannot be traced, then it is permissible to send/deliver the Notice to the place of business or employment.

A Notice to a company should be addressed to the company (not to the Company Secretary, or any other officer) at its Registered Office.

The Notice may need to be accompanied by a brief covering letter explaining why it is being issued, drawing attention to section TMA70/S98. A copy of the Notice and covering letter should also go to any agents acting.