AH1285 - General Commissioners: Before the hearing: Public funding for Commissioners' hearings

Public funding (formerly legal aid) is now available for taxpayers in certain cases before the General and Special Commissioners. Funding may be granted in the following limited circumstances:

• the proceedings concern penalties which the courts have declared to be criminal within the terms specified by the European Convention on Human Rights (ECHR) or where an applicant seeks to argue that issue and
• it is in the interests of justice for an applicant to be legally represented and
• the applicant satisfies the means test.

A leaflet (see EM1371) explains in more detail when public funding may be due. Decisions on funding are made by the Legal Services Commission.

Public Funding is not available for proceedings before Commissioners in Scotland or Northern Ireland. There are separate legal systems in those countries. The Community Legal Service only has responsibility for public funding for legal services in England and Wales.

Although we have not conceded that our penalties are criminal for the purposes of Article 6 of ECHR, this leaflet must be issued to all taxpayers who could elect for a Hearing before the Commissioners in England or Wales in the following circumstances

• in all enquiry cases at the stage where it appears likely that a penalty will need to be considered and the penalty leaflet is issued or
• at the time a formal penalty determination is made (for example under S93(3), S93(5), S 95, S97AA, S98(1) or S98(2) TMA 1970) if one has not already been issued
• if the taxpayer or agent requests it.

The leaflet must be issued even if the taxpayer is already represented.

The leaflet can be printed from EM1371.

Do not issue the public funding leaflet

• where the penalty would be charged on a company (as opposed to a director personally). Companies are not eligible for public funding
• in any tax credit enquiries. Tax credit appeals are heard by the Unified Appeals Tribunal.

We believe that public funding does not apply to our small fixed penalties (for example a £100 penalty under S93(2) TMA 1970 for failure to submit a return), but if a taxpayer wishes to argue before the Commissioners that a small fixed penalty is criminal they should be given the leaflet.

Do not become involved in any discussion about public funding. If the taxpayer or agent questions you about public funding

• explain that applications for funding should be made via a solicitor or another authorised organisation and not via HMRC
• refer any enquiries to the Legal Services Commission’s Cambridge Office, the address is given in the leaflet