Guidance on Restrictions for RSTPA Information Notices and Document Requirements

Limits on Revenue Scotland Information Notices

Revenue Scotland can use an information notice to ask for documents or information during a tax check, but its powers are limited. It cannot require material that is not in your possession or power, older documents may be protected by time limits, and certain categories such as legally privileged material remain protected even if they are relevant.

• A notice cannot require documents you do not physically hold or cannot obtain through legal rights, contracts, or practical influence.
• Revenue Scotland does not need to prove in advance that a document is in your possession or power, but you will not be in breach if you can show it is not.
• Documents that wholly originated more than five years before the notice are generally protected unless tribunal approval has been obtained.
• If a document includes entries for the period under review as well as older material, it may still have to be produced without tribunal approval.
• Special protections apply to review or appeal material, personal records, journalistic material, legally privileged documents, statutory audit material, and some taxpayer notices issued after a tax return.
• If protected material is offered voluntarily, Revenue Scotland must first warn that it has no power to inspect it; if it is still provided, it may inspect it and should keep a full record.

Scroll down for the full analysis.

Revenue Scotland information notices: the main limits on what can be required

This page explains the main restrictions on Revenue Scotland’s power to require documents or information through an information notice. The source material is about investigatory powers under the Revenue Scotland and Tax Powers Act 2014. In simple terms, even if Revenue Scotland is checking a tax position, it cannot demand everything. There are limits based on whether the document is within your control, how old it is, and whether it falls into a protected category such as legal privilege.

What this rule is about

An information notice is a formal notice requiring a person to provide information or produce documents for a tax check. The rule here is not about when Revenue Scotland may open an enquiry or check a transaction. It is about the boundaries of what can be demanded once an information notice is used.

These boundaries matter because they protect taxpayers and third parties from being required to produce material that the law treats as out of reach. They also matter in practice for advisers and conveyancers, because a response to an information notice often turns on what documents are actually available, who controls them, and whether any protected material is mixed in with ordinary records.

What the official source says

The official material identifies two general restrictions and a set of specific protected categories.

First, a notice cannot require production of a document that is not in your possession or power.

• Possession means physical control of the document. It does not matter who owns it.
• Power means you are able to obtain the document, or a copy, from the person holding it.
• That ability may come from a legal right to require it, or from the influence you have over the person who holds it.

The guidance also says Revenue Scotland does not have to prove in advance that the document is in your possession or power before asking for it. But if you can satisfactorily show that it is not, you will not have failed to comply by not producing it.

Second, there are time limits on what can be required.

• A notice cannot require a document where the whole of the document originated more than five years before the date of the notice, unless tribunal approval has been obtained.
• A notice cannot be given more than three years after a person has died if the notice is for checking that person’s tax position.

The guidance adds an important qualification for mixed-period documents. If a document contains entries for the period being checked as well as earlier entries, the document can still be required, even if part of it is more than five years old. In that case tribunal approval is not needed merely because some of the content is older.

The source then lists specific categories of material that remain protected even if they would otherwise be relevant and within your possession or power. These include:

• review or appeal material
• personal records
• journalistic material
• legally privileged information or documents
• auditors’ statutory audit information or documents
• certain taxpayer notices following a tax return

The guidance also says that if Revenue Scotland is offered a document that falls within one of these restrictions, it must remind the person that it has no power to inspect it. If the document is still offered after that warning, Revenue Scotland may inspect it, but should make a full record of the circumstances.

What this means in practice

The starting point is practical control. If you physically hold a document, it is likely to be in your possession even if it belongs to someone else. If you do not hold it, the next question is whether you can obtain it. That may depend on legal rights, contractual rights, or the real influence you have over the holder.

This can matter in property tax cases where documents may be spread across solicitors, group companies, agents, family members, lenders, or counterparties. A person may say, truthfully, that they do not have a document in hand, but that does not end the issue if they can readily obtain a copy.

The five-year rule is also narrower than it may first appear. It protects documents where the whole document originated more than five years before the notice, unless tribunal approval is obtained. But many business and transaction records are continuing documents. If an older file, ledger, or account also contains entries for the period under review, it may still be caught by the notice.

The protected categories are separate restrictions. A document does not become disclosable just because it is relevant and accessible. For example, legally privileged material remains restricted. The same is true for the other categories listed in the guidance.

The point about voluntarily offered documents is important. The guidance recognises that Revenue Scotland has no power to inspect restricted material merely because it is relevant. But if a person still chooses to provide it after being reminded of the restriction, Revenue Scotland may look at it. That means restricted material should be identified carefully before documents are handed over.

How to analyse it

A sensible way to analyse an information notice is to work through these questions in order:

1. What exactly has been requested? Identify each document or class of documents separately.
2. Is the document in your possession? In other words, do you physically hold it?
3. If not, is it within your power? Can you obtain it by legal right, contractual entitlement, or practical influence?
4. How old is the document? Did the whole document originate more than five years before the notice?
5. If it is an older document, is it a mixed-period document that also contains entries for the period being checked?
6. Is the notice being used to check the tax position of a deceased person, and if so, was it issued within three years of death?
7. Does the material fall within a protected category such as legal privilege, personal records, review or appeal material, or audit material?
8. If protected and unprotected material are mixed together, can they be separated so that only non-restricted material is produced?

In practice, the key evidence is often factual rather than legal. For example, if you say a document is not within your possession or power, you may need to explain who holds it, what rights you do or do not have to obtain it, and what steps have been taken to check.

Example

Illustration: Revenue Scotland issues an information notice to a company involved in a land transaction. The company does not physically hold some correspondence because its solicitor has the file. That does not necessarily mean the company can refuse to produce it. If the company is entitled to obtain copies from the solicitor, the documents may be within its power.

Now suppose the notice also asks for an accounting ledger created seven years ago, but that ledger contains entries continuing into the period now under review. On the guidance, the document may still have to be produced without tribunal approval, because only part of it is older than five years.

But if the solicitor’s file includes legally privileged advice, that protected material is subject to a separate restriction. Relevance and accessibility do not remove that protection.

Why this can be difficult in practice

The hardest issue is often “power”. Physical possession is usually straightforward. Power is more fact-sensitive. The guidance says it can arise from legal entitlement or influence. Legal entitlement is easier to analyse. Influence is less precise. It may depend on the real relationship between the person receiving the notice and the person holding the document.

Another difficult area is older documents. The rule is framed by reference to whether the whole document originated more than five years before the notice. That can be simple for a single historic letter, but less simple for running files, ledgers, or documents updated over time.

Protected categories also need careful handling. The source page lists them but does not explain each one in detail. In practice, disputes may arise about whether a document truly falls within a restricted category, especially where legal privilege is asserted or where a file contains both protected and unprotected material.

Finally, the point about voluntarily offered restricted documents creates practical risk. Once a document is offered after a warning, Revenue Scotland may inspect it. That means document review before disclosure is important, particularly where legal, appeal, medical, journalistic, or audit material may be embedded in a wider file.

Key takeaways

• Revenue Scotland cannot require documents that are not in your possession or power, but “power” can include both legal rights and practical influence.
• Documents wholly originating more than five years before the notice are generally protected unless tribunal approval is obtained, but mixed-period documents may still be required.
• Some categories of material are specifically protected, including legally privileged material, and those restrictions apply even if the documents are otherwise relevant and accessible.

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Useful article? You may find it helpful to read the original guidance here: Guidance on Restrictions for RSTPA Information Notices and Document Requirements

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