Commentary on Sections Part 4 – Investigatory Powers of WRA Section 88 – Tribunal approval of taxpayer notices and third party notices
85.This section 88 provides the tests the tribunal must apply when it is asked by WRA to approve the issue of a taxpayer notice (section 86) or a third party notice (section 87).
86.The test the tribunal must apply when deciding whether to approve a taxpayer notice or third party notice will depend on whether the recipient has been told that WRA will be applying for approval.
87.If the recipient has not been told that WRA will be applying for tribunal approval, the test provided by subsection (2) applies. This requires the tribunal to be satisfied that the requirements for the issue of the notice have been met; and that giving notice of the application might prejudice the assessment or collection of devolved tax.
88.If the recipient has been told that WRA will be applying for tribunal approval, the test provided by subsection (3) applies. As well as requiring the tribunal to be satisfied that the requirements for the issue of the respective notice have been met, the test also requires the tribunal to be satisfied that the recipient of the notice has been told about the information or documents required by WRA, and given an opportunity to make representations about that request to WRA. Where representations are made, WRA must provide the tribunal with details of those representations. In the case of a third party notice, the tribunal must be satisfied that the taxpayer who is the subject of the notice has been told by WRA why the information or documents are required.
89.When a recipient has been told that WRA is going to require the information or documents in a formal notice it becomes a criminal offence under section 115 to conceal, destroy or otherwise dispose of the information or documents.
90.Subsection (4) enables WRA to disapply some of the above requirements where giving notice of the application to the taxpayer or third party might prejudice the assessment or collection of devolved tax. The tribunal may make such modifications of the notice as it thinks appropriate (for example the tribunal might think it is reasonable for WRA to require some documents but not others and might restrict the scope of the information notice accordingly).