EM5616 - Commissioners: Conduct of Appeals Against Self Assessment Information Notices

Conduct of the Appeal Before the Commissioners

Whether or not the information required is reasonably relevant is a subjective test. Hearings at which these appeals are considered are likely to be similar in form to a hearing at which you ask the Commissioners to consider the issue of a notice for information under Regulation 10 SI 1994 No. 1811. (See IM4982; IM4989 and EM5650+ on the use of Regulation 10.)

An appeal against an SA notice does not provide an opportunity to the taxpayer to question your right to enquire into any return. You should emphasise this to the Commissioners particularly in cases where it is suggested that you need to put forward grounds for dissatisfaction or that you should justify your enquiries into a return.

Onus on Taxpayer

The onus is on the taxpayer to show why he or she should not provide the information.

But you will need to be able to demonstrate to the Commissioners that the information is reasonably required to determine whether

• or not a particular return is complete
• or not a particular return or amendment to a return is correct
• any documents are in the possession or power of the taxpayer
• you have given the taxpayer a reasonable time to comply with the notice.

Demonstrating that information required under an information notice is relevant to the return

There should be no difficulty in showing the relevance of any records you have requested which clearly are within the SA record keeping requirements. But you should be prepared to make out a case for the production of any other records or information.

Interaction with TMA70/S20

It is possible that some records which are needed to check the return may, nevertheless, not be capable of being required under Section 19A. An example of this might be a spouse’s bank account into which the taxpayer had indicated he or she had paid all the business takings. This could legitimately have been requested during the enquiry but could not be the subject of a Section 19A notice because it was not in the possession or power of the taxpayer. Any formal action to obtain it would have to be by means of a Section 20(3) TMA notice served on the spouse.

Commissioners’ Decision Final

When determining any appeal the Commissioners will either:

• confirm the original notice
• confirm only that part of the notice which they consider does fulfil the requirements of the section or
• set the notice aside.

Whenever a notice is confirmed by the Commissioners, it must be compiled with within 30 days of the determination of the appeal.

Neither party is entitled to appeal to the Courts from the Commissioners’ decision. This is because the questions to be answered by them in the appeal are purely factual.