This guidance explains how legal professional privilege applies in HMRC’s interactions with tax avoidance cases, including disputes, disclosure requirements, enabler penalties, declarations and the publication of information.
Legal professional privilege (LPP) is a vital principle and fundamental right.
There is no power for HMRC to compel a person to produce material attracting LPP, even where it would be relevant to establishing the correct tax liability. Absent a waiver or loss of privilege, HMRC must assess tax using the non-privileged facts, documents and third party information available.
HMRC will therefore proceed on the basis that it is equally vital that:
- where a document attracts LPP, this privilege is respected
- where a document does not attract LPP, misconceived assertions of LPP do not deprive HMRC of material that can inform the discharge of its functions
- where there is a dispute as to whether material attracts LPP, HMRC will work with the privilege holder to resolve that dispute swiftly and effectively, this may ultimately mean seeking a judicial ruling
This document summarises in general terms HMRC’s approach when the validity of a claim of privilege may need to be tested. It is only a general summary, and every case will need to be considered on its own merits and in light of its own unique facts.
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