SolvedCH177340 | Sanctionable conduct by tax advisers: file access notice: penalties for failing to comply: offence of concealment in connection with a file access notice
From HM Revenue & Customs · Compliance Handbook
A person commits an offence if they
conceal, destroy or otherwise dispose of a ‘required document’, or
arrange for the concealment, destruction or disposal of a required document.
The meaning of ‘required document’ depends on whether that document has been requested in a file access notice.
Where the document has been requested in a file access notice, ‘required document’ means one in respect of which
the notice has not been complied with, or
it has been complied with, but the person has been told by us, in writing, to continue to retain the document, and that notification has not been withdrawn.
Where the document has not been requested in a file access notice, ‘required document’ means
that we have told the person that we are likely to issue them with a file access notice for that document, and
no more than six months have elapsed since the person was, or was last, told.
A person commits an offence in respect of each required document that has been concealed, destroyed or otherwise disposed of.
Because a ‘required document’ can include a document that has not been requested in a file access notice, it means that a person can be prosecuted for concealing, destroying or otherwise disposing of a document even when a file access notice has not been issued.
Note that because a file access notice can be issued to people who are not tax advisers, see , then the sanctions for not complying with a file access notice also apply to people who are not tax advisers.
The person can be prosecuted for the offence, or charged penalties, but not both, see .
The burden of proof is on HMRC, and the standard of proof is the criminal standard of beyond reasonable doubt.
A person who is found guilty of this offence is liable
on summary conviction, to a fine not exceeding the statutory maximum, and
on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both.
Even if we decide not to prosecute, we can still charge the initial penalty, see . We would be unable to charge the daily penalties, see because the documents no longer exist.