To what extent are the tax authorities entitled to delve into what would otherwise be your private financial information? The High Court tackled that issue in authorising disclosure of a wealthy businessman’s credit card statements to HM Revenue and Customs (HMRC) as part of a cross-border investigation into his tax affairs.
The Swedish businessman claimed not to be subject to Swedish tax on the basis that he had emigrated to Switzerland. The Swedish tax authorities considered that he remained ordinarily resident in Sweden and requested HMRC’s assistance in investigating the matter. HMRC responded by issuing a third-party notice against a London-based credit card company, requiring disclosure of the businessman’s statements. The notice was approved prior to service by the First-tier Tribunal (FTT).
In challenging the latter decision, the businessman argued that information contained within the request for assistance was contradictory, wrong and implausible. It was submitted that HMRC could not rationally have concluded that disclosure of the statements was reasonably required for the purpose of checking his tax position, within the meaning of Schedule 36 of the Finance Act 2008.
In dismissing the judicial review challenge, however, the High Court noted that third-party notices are subject to judicial monitoring, rather than an adversarial process, and that they can only be challenged on limited grounds. HMRC was not required, before issuing the notice, to consider the merits, nature or extent of the investigation. It was sufficient that the Swedish tax authorities were engaged in a genuine and legitimate inquiry that was neither irrational nor being conducted in bad faith.
There was a rational connection between the credit card statements and the issue as to whether the businessman was tax resident in Sweden or Switzerland. Credit card purchases of meals, consumables or accommodation within a particular geographic location were likely to support an inference that he was physically present in that location at the time of the expenditure.
Kotton v First-tier Tribunal (Tax Chamber). Case Number: CO/4571/2018
