SCHEDULES
SCHEDULE 16Penalties for enablers of defeated tax avoidance
PART 9Information
Declarations about contents of legally privileged communications
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1
Subject to sub-paragraph (5), a declaration under this paragraph is to be treated by—
a
HMRC, or
b
in any proceedings before a court or tribunal in connection with a penalty under paragraph 1, the court or tribunal,
as conclusive evidence of the things stated in the declaration.
2
A declaration under this paragraph is a declaration which—
a
is made by a relevant lawyer,
b
relates to one or more communications falling within sub-paragraph (3), and
c
meets such requirements as may be prescribed by regulations under sub-paragraph (4).
3
A communication falls within this sub-paragraph if—
a
it was made by a relevant lawyer (whether or not the one making the declaration),
b
it is legally privileged, and
c
if it were not legally privileged, it would be relied on by a person for the purpose of establishing that that person is not liable to a penalty under paragraph 1 (whether or not that person is the person who made the communication or is making the declaration).
4
The Treasury may by regulations impose requirements as to the form and contents of declarations under this paragraph.
5
Sub-paragraph (1) does not apply where HMRC or (as the case may be) the court or tribunal is satisfied that the declaration contains information which is incorrect.
6
In this paragraph “a relevant lawyer” means a barrister, advocate, solicitor or other legal representative communications with whom may be the subject of a claim to legal professional privilege or, in Scotland, protected from disclosure in legal proceedings on the grounds of confidentiality of communication.
7
For the purpose of this paragraph, a communication is “legally privileged” if it is a communication in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications as between client and professional legal adviser, could be maintained in legal proceedings.