Order for production of documents by HM Revenue and Customs
The official receiver will often need information from HM Revenue and Customs (HMRC) regarding a company's or bankrupt's tax affairs and history. HMRC do not need the authority of the company or its officers to disclose information about a company's tax affairs to the liquidator of the company (see paragraph 13.103), but they do need the authority of a bankrupt to disclose personal information about his/her tax affairs. If this authority is withheld, the official receiver must make an application under section 369 for the production of the necessary information.
The official receiver does not need a court order for HMRC to disclose information about the company's tax affairs in winding-up proceedings, as HMRC do not need authority to disclose information to the official receiver as liquidator of the company. HMRC regard the liquidator of a company as standing 'in the shoes of the company' and consequently are able to disclose anything to the official receiver (acting in the capacity as liquidator) concerning the company's affairs that they would have been able to disclose to the company e.g. correspondence between HMRC and the company, details of payments made (whether for tax or national insurance contributions), reports of meetings between the company and HMRC etc.
HMRC are able to disclose information on a partnership's tax affairs to the official receiver in the same way as a company although the liquidator's authority only covers the tax affairs of the partnership and does not cover the personal tax affairs of a partner. For further information see also Chapter 47 Part 8 - Disclosure.
Where a bankrupt is co-operating in the proceedings and is prepared to sign the standard form of authority to HMRC to disclose information there will normally be no need to make use of the section 369 procedure.
Note: [form TNIDIS]
Section 369 permits the official receiver or the trustee to apply to the court for an order that an HMRC official produce certain documents to the court for the purposes of a public examination in a bankruptcy. An HMRC official means any inspector or collector of taxes appointed by the Commissioners of HMRC or any person appointed by the Commissioners to serve in any other capacity. An order under section 369 may also be made in the context of a private examination, except where it is held on the application of an interim receiver.
Notes: [s369(6)] [s369(7)]
Where a bankrupt does not co-operate and an examination is held application may be made to the court for an order that HMRC produce:-
Notes: [s369(1)(a)] [s369(1)(b)] [s369(1)(c)]
a. any return, account or accounts submitted to any HMRC official (either before or after the commencement of the bankruptcy) by the bankrupt;
b. any assessment or determination made (either before or after the commencement of the bankruptcy) in relation to the bankrupt by any other HMRC official ;
c. any correspondence (either before or after the commencement of the bankruptcy) between the bankrupt and any HMRC official.
The provisions are framed in the form of a mandatory requirement to produce documents in the context of a formal examination because HMRC cannot voluntarily reveal information supplied in confidence.
The appropriate HMRC official should always be informed in advance when the procedure is to be invoked. Where the route chosen involves the private examination of an HMRC official, he/she will not actually be expected to undergo an examination in court. The fixing of the examination is simply a device to allow section 369 to be brought into operation.
The official receiver must in his/her application specify the documents which he/she wants to be produced in such a way that they can be easily identified. He/she must also name the HMRC official to whom the order is to be addressed, as the court has to be satisfied that the official named is dealing, or has dealt, with the bankrupt’s affairs.
Notes: [r6.194(1) as amended by the Insolvency (Amendment) Rules 2010] [s369(3)]
(Amended October 2010)
The court will then fix a venue for the hearing of the application and notice of this together with a copy of the application must be given by the official receiver to the Commissioners of HM Revenue and Customs , Enforcement Office, Barrington Road, Worthing, West Sussex BN12 4SE at least 28 days before the hearing. Copies should be sent at the same time to the HM Inspector of Taxes who is thought to be dealing with the case. The notice states that the Commissioners must inform the court not later than 5 business days before the hearing whether they consent or object to the making of the order (7 days for pre-6 April 2010 petition cases).
Notes: [form IRDPN] [r6.194.(2) and (3) as amended by the Insolvency (Amendment) Rules 2010] [r6.194(4) as amended by the Insolvency (Amendment) Rules 2010]
(Amended October 2010)
If the Commissioners consent they must advise the court if the order should be addressed to someone other than the person named in the application. If they object, they must give the court a written statement of their grounds of objection not less than 5 business days before the hearing and must ensure that one of their officers attends the hearing (7 days for pre-6 April 2010 petition cases). A copy of their statement must also be sent to the official receiver.
Notes: [r6.194(5)] [r6.194(6) as amended by the Insolvency (Amendment) Rules 2010]
The court can make the order with such modifications as appear appropriate having regard to the Commissioners’ representations. The rules give a wide discretion to the court as to the terms of the order; which may be addressed to an HMRC official other than the one named in the application and may include requirements as to the manner in which documents to which the order relates are to be produced. The order must specify a time, not less than 28 days after service within which compliance is required.
Notes: [Form 6.69] [r6.195(1)] [r6.195(2) as amended by the Insolvency (Amendment) Rules 2010]
The official receiver must serve a sealed copy of the order on the HMRC official to whom it is addressed. Service by post is sufficient.
Note: [r6.195(3)] [form IRDPN]
If the HMRC official to whom the order is addressed knows that any relevant document is in the hands of another HMRC official he/she should request that it be given to him/her. It is the duty of the HMRC official in possession of the documents to deliver them to the official who makes the request. It is the duty of the HMRC official to whom the order is addressed to take reasonable steps to ensure possession of any document specified in the order. If the HMRC official is unable to comply with the order because the relevant documents are not in his/her possession and he/she has not been able to obtain possession of them, he/she must provide the court with a statement in writing of the reasons for non-compliance and give a copy of that to the official receiver.
Notes: [s369(5)] [s369(4)] [r6.195(4)]
Documents to be produced will be delivered to the court, not directly to the official receiver. The court is permitted to authorise the disclosure to the official receiver of any documents or any parts of them after they have been produced to the court. Disclosure to the trustee or the bankrupt’s creditors may also be authorised. Normally the court will only authorise disclosure to the person who applied for the order and disclosure will usually take the form of giving the applicant custody of the documents concerned.
Notes: [s369(2)] [form 6.70]
Where original documents rather than copies are produced, any person who under section 369(2) has them in his/her possession or custody is responsible to the court for their safe-keeping and must return them as and when directed. Where the official receiver is given custody of original documents, he/she may take copies of them.
Notes: [s369(2)] [r6.196]