CH182740 - Dishonest tax agents: file access notice: documents and information that cannot be requested: not in a person's possession or power
We cannot require a person to produce a document unless
- the document is in their possession, or
- they have the power to produce it.
鈥業n their possession鈥� means that the person has physical control over the document. It does not matter who the document belongs to.
鈥業n their power鈥� means the person has the ability to get the document, or a copy of it, from whoever holds it.
This ability to get the document can be through
- a legal entitlement to make the person holding the document give it to them, or
- the influence that the person has on the person who owns or possesses the document.
We do not need to be able to prove that a document is in a person鈥檚 possession or power before requiring them to produce it.
However, the person will not have failed to produce the document (or a copy of it) if they can satisfactorily show
- that it is not in their possession or within their power to produce, or
- why they are unable to produce a document that is within their power.
The onus is on the person to produce the document.