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Fishing and fishy? HMRC third party interviews in employment tax investigations

Speed read
HMRC often conducts interviews with workers in employment tax cases. Workers are third parties for the purposes of information notices under FA 2008 Sch 36. But Sch 36 powers do not properly cover interviews, whereas HMRC’s informal investigation powers do but are premised on taxpayer consent such that, if an engager withholds it, HMRC cannot lawfully interview workers. The evidential value of interview notes in a tribunal appeal is low for practical reasons and because they are hearsay evidence over which parties may engage in procedural disputes. In the absence of statutory reform, the best solution is to encourage dialogue between taxpayers and HMRC, but the quality of that dialogue can be variable.

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