Bankruptcy court has no control over HMRC's third party notices—Revenue and Customs Commissioners v Ariel

Bankruptcy court has no control over HMRC's third party notices—Revenue and Customs Commissioners v Ariel

How does an insolvency office-holder deal with a third party information notice served on him by HMRC with the approval of the First Tier Tribunal (FTT)? Joseph Curl, barrister at 9 Stone Buildings, considers the significance of the recent appeal decision in Revenue and Customs Commissioners v Ariel.

Original news

Revenue and Customs Commissioners v Ariel (as Trustee of the Estate in Bankruptcy of Halabi) [2016] EWHC 1674 (Ch), [2016] All ER (D) 151 (Jul)

The Chancery Division, in allowing the Revenue and Customs Commissioners' appeal against a Registrar's decision, held that the Registrar had erred in giving directions to the respondent trustee in bankruptcy at the hearing of an application for directions in respect of a third party notice under Sch 36 of the Finance Act 2008 (FA 2008). The Registrar's decision had anticipated that a Registrar might actually make an order inconsistent with a notice. That more than hinted at a parallel jurisdiction, and was wrong.

What practical lessons can those advising take away from this case?

This case was about the interaction between the powers of HMRC and the FTT under FA 2008, Sch 36 and the power to give directions under section 303 of the Insolvency Act 1986 (IA 1986). The lessons to take from this decision are:

  • HMRC has far-reaching powers to issue notices (information notices) requiring disclosure of information and documents against third parties, including trustees in bankruptcy (trustees)
  • the bankruptcy court has no control over such notices, which are outside the bankruptcy regime
  • the FTT has exclusive jurisdiction over such notices
  • third parties, such as trustees in bankruptcy, have no right to be heard on an application for a third party notice
  • the only avenue of appeal against a third party notice is judicial review

What was the background to the case?

HMRC appealed from the decision of Registrar Derrett

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.