Documents subject to legal advice privilege were not disclosable to HMRC

In Refinitiv UK Holdings Ltd and Another v HMRC [2023] UKFTT 222 (TC), the First-tier Tribunal (FTT) held that certain documents requested by HMRC in an information notice, did not have to be disclosed because they were subject to legal professional privilege (LPP).

Background

HMRC had opened enquiries into certain arrangements entered into between subsidiaries of Refinitiv UK Holdings Ltd and Thomson Reuters Group Ltd (TR) (together, the applicants) in the context of a dispute about diverted profits tax, and issued information notices to the applicants under paragraph 35, Schedule 36, Finance Act 2008 (the schedule 36 notices).

The schedule 36 notices required the applicants to provide contemporaneous documents including tax advice in relation to 'Project Vista', a group transformation project. The applicants itemised certain documents which were not being disclosed to HMRC on the basis that they were subject to LPP (the disputed documents). HMRC was of the view that it did not have sufficient information to assess the validity of the LPP claim.

As HMRC did not accept that the disputed documents attracted LPP, the applicants applied to the FTT, under Regulation 5(5) of the Information Notice: Resolution of Disputes as to Privileged Communications Regulations 2009, for the FTT to determine whether the disputed documents were subject to LPP and did not therefore have to be disclosed to HMRC. 

FTT decision

The application was granted. 

The applicants provided the disputed documents to the FTT for consideration by the tribunal judge (but not HMRC). The FTT concluded that the disputed documents were subject to LPP as they constituted a 'continuum of communications' between TR's in-house lawyer and their client, the dominant purpose of which was to allow for legal advice to be sought and provided. Accordingly, the applicants were not required to disclose any part of those documents to HMRC.

Comment 

This decision provides a useful indication of how the FTT is likely to approach disputes regarding whether certain documents are subject to LPP and need not therefore be disclosed to HMRC in response to an information notice issued under Schedule 36, Finance Act 2008. 

The decision can be viewed here.