The Supreme Court has today unanimously ruled that HMRC unlawfully disclosed confidential information in an “off the record” background briefing of the press.

Commenting on the judgement given by the Supreme Court, an Ingenious spokesperson said:

“We are delighted that the Supreme Court has unanimously found in our favour.  This was never about restricting HMRC’s ability to collect taxes, nor was it about preventing the press from investigating public interest stories.  Consistent with HMRC’s own guidelines, this was simply about upholding the basic legal principle that HMRC owe a duty of confidentiality to each and every tax payer and their affairs should not form the subject of “off the record” background briefings to the media.”

Background

The case involved an “off the record” background briefing of the press in June 2012 by the then Permanent Secretary of HMRC, Mr Hartnett, at which Mr Hartnett supplied confidential information to two journalists.  The information disclosed was only tangentially related to the case before the First Tier Tax Tribunal and the film production partnerships which Ingenious operated.  This briefing took place during the ordinary course of an enquiry into their film production partnerships and despite the fact that they had been entirely transparent with HMRC about the structure and operation of the film production partnerships and had engaged and cooperated with HMRC for many years in relation to the partnerships.  The briefing took place before Ingenious had decided to commence legal proceedings at the First Tier Tax Tribunal.

HMRC sought to justify Mr Hartnett’s briefing on the basis that there was a general desire on the part of HMRC to foster good relations with the media and to publicise HMRC’s views regarding what they considered to be elaborate tax avoidance schemes.

However, the five judges of the Supreme Court unanimously decided that the arguments put forward by HMRC could not possibly justify a senior official, or any other official of HMRC, discussing the affairs of individual tax payers with journalists.  Neither did the judges accept HMRC’s defence that because Mr Hartnett did not expect his comments to be reported that he was justified in making them.  The judgement went on to say that the whole idea of HMRC officials supplying confidential information about individuals to the media on a non-attributable basis is, or should be, a matter of serious concern.

This landmark ruling is of wide spread public interest as it upholds the basic common law principle of confidentiality and in particular the duty of confidentiality which is owed by HMRC to individual tax payers.

For us, this case was not about preventing HMRC from undertaking their role as effectively as possible which is of course vitally important.  Nor was it about seeking to restrict important public interest stories which investigative journalists can do brilliantly well.  It was much simpler than that.  In providing an “off the record” background briefing to the press, HMRC abused their power by ignoring both their own guidelines and their common law obligation to each and every tax payer to keep their personal financial affairs confidential.

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