Taxpayer confidentiality - the naming of cases

Keith Gordon v ICO & HMRC

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If I've understood this case correctly then HMRC are prevented from naming a published tax decision where the dispute relates to an individual as the name of the case is confidential information relating of the taxpayer litigant. 

https://www.bailii.org/uk/cases/UKFTT/GRC/2022/437.html

Does this mean that there will now be wholesale redactions in HMRC's manuals, and other guidance and that HMRC can't refer to cases in correspondence? Or does it mean HMRC can breach taxpayers' confidentiality by naming cases if they chose?

 

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David Winch
By David Winch
20th Dec 2022 21:40

One can imagine that this decision might be appealed.

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Replying to davidwinch:
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By Hugo Fair
20th Dec 2022 23:22

One might very well hope so ... before sanity follows common sense down the gurgling plug-hole.

[Hint: A gurgling drain usually indicates that there's a partial blockage somewhere in the system.]

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paddle steamer
By DJKL
21st Dec 2022 09:16

So, we will soon all be numbers, HMRC v 123456

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Replying to DJKL:
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By Hugo Fair
21st Dec 2022 14:03

All together now ... "I am not a number, I'm a free man"!

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Replying to DJKL:
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By NotAnAccountant2
21st Dec 2022 15:38

DJKL wrote:

So, we will soon all be numbers, HMRC v 123456

Dear 123456,

We are taking a personal interest in your case.

Love
HMRC
xxx

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By richard thomas
21st Dec 2022 14:10

The problem Keith had was the fault of s 23(1A) CRCA 2005 which has the effect that in judging whether a disclosure by HMRC would reveal or enable to be deduced the identity of an individual (see s 19 CRCA making disclosure a criminal offence & s 44 FOIA 2000) you have to ignore the exceptions (ss (2) and (3)) to the general rule in s 18(1) CRCA permitting such disclosure. One of those exceptions is that HMRC can disclose taxpayer specific information to the courts or tribunals, naturally.

Whether HMRC can disclose the names of taxpayers in their guidance depends on their being able to show that one of the exceptions in s 18 applies, and FOIA is not relevant. It would have to be s 18(2)(a):

"But subsection (1) does not apply to a disclosure—

(a) which—

(i) is made for the purposes of a function of the Revenue and Customs, and

(ii) does not contravene any restriction imposed by the Commissioners,"

The function concerned would be for the guidance of taxpayers and their advisers who will be able to know HMRC's views. Ironically I recall that one of the reasons given for publication of guidance was "Freedom of Information", yet as is shown in Keith Gordon's case FOIA is far more restrictive than s 18 CRCA.

A real oddity about s 23(1A) CRCA is that it was inserted in 2009 by s 19 of the Borders, Citizenship and Immigration Act 2009! That Act set up what became Border Force and gave to designated BF (the Tax Tribunal's often accurate abbreviation for Border Force officers when giving evidence) officers customs revenue functions and powers.

This included powers to disclose customs information to various bodies similar to the gateways in s 18 CRCA. Section 19(3) BCIA 2009 enacted a rule limiting what customs revenue information held by Border Force could be disclosed under FOIA and s 19(4) enacted what is s 23(1A) CRCA but did not limit it to customs revenue information held by HMRC, but to all tax information held by them. The Explanatory Notes to CBIA are uninformative.

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Mark Lee headshot 2023
By Mark Lee
21st Dec 2022 17:36

In the old days, taxpayers could choose to take disputes to either the Special Commissioners or to the General Commissioners. One of them (I forget which) published all decisions anonymously. I was aware of one household name company that gave in to HMRC (The Inland Revenue as it then was) to avoid having their dispute moved into the public domain. It probably happened a lot.

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Replying to bookmarklee:
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By richard thomas
21st Dec 2022 17:54

The General Commissioners did not publish decisions, The Specials did, but only since the late 90s. Before then taxpayers would give in as they knew that if they won at the Specials, IR would appeal to the High Court when the gory details would be published.

It is possible to seek anonymity at the tribunals but very rarely granted. Chris Moyles failed when trying to stop being named in a particularly egregious tax avoidance case, "Wheels".

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Replying to richard thomas:
Mark Lee headshot 2023
By Mark Lee
22nd Dec 2022 18:14

Many thanks for the clarification Richard.

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