In the November issue of Tax Adviser, it is reported that the President of The Chartered Institute of Taxation, CIOT, believes that Chartered Tax Advisers are being unfairly discriminated against and should be given the same legal professional privilege as lawyers. Contact:
Viv Rees, Head of Communications, 020 735 9381
In the November issue of Tax Adviser, it is reported that the President of The Chartered Institute of Taxation, CIOT, believes that Chartered Tax Advisers are being unfairly discriminated against and should be given the same legal professional privilege as lawyers.
Penny Hamilton, CIOT President and a practising barrister said:
“I have long thought that legal professional privilege should also extend to similar legal advice given by a professional whether or not a lawyer. The historical justification and rationale for confidentiality between lawyer and client applies equally to other professionals giving legal advice. At the moment many people will choose to go to a lawyer doing exactly the same work as a tax adviser, simply because the lawyer has legal privilege. That can’t be right or fair. Chartered Tax Advisers should be allowed to compete for business on equal terms with lawyers.”
Presenting the case for giving legal privilege to Chartered Tax Advisers at a seminar on the issue organised by the CIOT, Philip Baker QC, a leading CIOT member, began by saying that there were clear implications in European Human Rights and EU law which state that the rights relating to respect for private and business correspondence extends to both the adviser and his client (article 8 ). When one goes further to look at the prohibition of discrimination (article 14), it is defined as the “unjustified or disproportionate application of different treatment to objectively identical situations” which raises two fundamental questions:
- Is the non-lawyer adviser in an objectively identical situation to the lawyer adviser?
· (If so), can the difference in treatment be justified? Is it proportionate?
Penny Hamilton concluded:
“The common law needs to catch up with modern professional life, and the human rights legislation should encourage it to do so. It may need litigation through the UK and European courts to establish a level playing field for professionals such as Chartered Tax Advisers who give legal advice, but we’ll get there in the end.”
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