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It is not necessary to know that a document definitely exists, or that it is in the power or possession of the recipient of the notice, for it to be included in the notice. Documents may be ‘described� without being individually identified in the notice. The appeal right, or alternatively the requirement for HMRC to satisfy the First-tier Tribunal that a notice is reasonable are essential protections against any possible or alleged abuse of power.

Case law relating to a predecessor provision, section 20 TMA 1970, established that it was not necessary to know that documents existed, in order to describe them in a notice. (See R v CIR ex parte Ulster Bank Ltd 69 TC 211, which on this point overturned the decision in R v O’Kane and others ex parte Northern Bank Ltd 69 TC 187.) Tax cases where the courts have given a ruling on the interpretation of previous legislation will not be authoritative in the interpretation of Schedule 36 powers. However, you may refer to them as a general guide to how the tribunal may think when considering similar situations in the use of Schedule 36 powers.