SPM241100 - Information Powers - Formal Information Notice disputed

The person may claim that:

  • All or part of the information is not reasonably required for the purpose of determining whether a Statutory Payment is or was payable. In practice the dispute is likely to take the form of an objection to providing specific items of information.
  • The documents required are unavailable (for example, because they have been lost or destroyed), see SPM241200.
  • The time allowed in the Notice for the production of the information is insufficient, see SPM241300.
  • The Formal Information Notice breaches the person’s right to respect for privacy under HRA 98/Article 8 of the European Convention of Human Rights Act (ECHR), see SPM241400.

However there is no right of appeal against the Formal Information Notice.

You should try to resolve any disputes before seeking approval to take penalty proceedings.

If you are not able to resolve the dispute make sure that:

  • you include full details of the dispute when referring the case to the Grade 6 or above for approval to commence penalty action and
  • if penalty action is approved, you fully brief the officer in writing who will be taking penalty proceedings on what the dispute is about and what action you have taken to resolve it.

When HMRC take penalty proceedings before the First-tier Tribunal the officer has to present his case to the First-tier Tribunal. Each party is entitled to attend a hearing subject to Rule 30 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (No.273 (L.1)) The HMRC officer must therefore present both sides of the argument.

HMRC’s case for imposing a penalty needs to show that:

  • there are proper grounds for the investigation
  • the information and, or documents are necessary to the investigation
  • the scope and nature of the information and, or documents is proportionate to the request
  • the Formal Information Notice was issued correctly and
  • the information and, or documents have not been provided.

The case against imposing a penalty will need to include any points made disputing the issue of the Formal Information Notice, and any other reasons why the First-tier Tribunal should consider not imposing a penalty.

The First-tier Tribunal will only agree to impose a penalty if they are satisfied that all this has been done properly.

Failure to comply with the Formal Information Notice - Consider penalties

If your Formal Information Notice has been issued and has not been complied with, you should refer the case through your manager to a Grade 6 officer for approval to make a penalty application to the First-tier Tribunal.

However if part of the information has been supplied, you should consider whether this information is sufficient to enable the case to be resolved.