Tax advisers should seize the day and have their say on the Revenue's new investigatory powers

Given the intensity of feeling that the pendulum has swung too far, it would be surprising if the opportunity to comment is not seized.

Recent cases have highlighted claims by the Inland Revenue that documents containing tax advice are relevant evidence in litigation where a key element in the Revenue's arguments is that transactions are tax motivated.

It seems that claims to privilege are unlikely to frustrate the Inland Revenue's use of the S20 production powers to obtain documents containing tax advice, providing those documents amount to 'relevant information'. But what is the process for arbitrating on the Revenue's claims?

To succeed in a S20 application, the inspector has only to present an argument that the information sought is relevant for the purpose of his or her enquires.

The taxpayer does not know what information the inspector has to justify that assertion.

The taxpayer may make representations to the Commissioner, but the application will be decided without the Commissioner examining the documents - and therefore without being able to form an independant view of the claims of both sides.

This S20 situtation contrasts sharply with processes for dealing with claims to privilege during the exercise of search warrants by the Inland Revenue or by HM Customs & Excise.

Recent cases have described processes where a third party (counsel nominated by the Attorney General) is present to take an independent view if privilege claims arise.

There may be some concerns that their appearance may inhibit the ability to make full and proper argument about privilege claims.

Nonetheless, this process does at least have the advantage that disputed documents are viewed by a party whose function is to be independent.

If an independent process is good enough for resolving privilege disputes when criminal powers are being exercised, why should there not be a similar process for resolving disputes about all forms of advice documents when civil powers are used?

If the taxpayer argues that the disputed documents contain no relevant information, but are merely advice and the Revenue maintains the opposite, why should an independent arbiter not view the documents at that stage and reach an independent view?

Tom Crawdon is Tax Investigations Market Leader with PricewaterhouseCoopers

Accountants warned to watch out for the smiling tax inspector with new powers