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Legal alerts / 19 Sep 2016

Legal Alert – Recent Decision of the SAC Deems Tax Inspectors’ Written Notes Accessible to Taxpayer

Under Finnish law, official documents prepared by authorities are in the public domain. Documents that are not yet in the public domain may be accessed by the parties whose rights or obligations are concerned in the matter. These rights were evaluated in the Finnish Supreme Administrative Court’s (SAC) decision of 13 September 2016 (KHO:2016:131) regarding a company’s right to access official documents in relation to tax inspector’s interview questions and notes used as a source for a tax audit report. Contrary to the Tax Administration’s view, the SAC deemed that the company had the right to access the notes taken on the interview since they were the only written documentation of them.

Background

The Finnish Tax Administration originally dismissed the company’s request to access the materials containing the tax inspector’s questions and notes. The questions were made in preparation for an interview of the company’s personnel, and the notes reflected the course of the conducted interviews. The resulting tax audit report made several references to these interviews, and the notes were the only written documentation of them. According to the tax authority, the requested documents were not considered official documents under the Finnish Act on the Openness of Government Activities, which states that notes kept by a person in the service of an authority and such drafts which have not yet been released for a presentation or other consideration are not deemed official documents.

The SAC ruled that the company did have the right to access the notes, but not the questions regarding the preparations of the interviews. The court confirmed that a document drafted by an authority is deemed official upon its release for a presentation or other consideration of the matter, and clarified that as the notes were referred to in the tax audit report they had been released for such purposes and thus made official. The court also emphasised that all evidence used in the tax audit report must be presented in written form, and since the notes were the sole source for the interviews, the company had to have the right to access them.

As for the interview questions, the court did not consider them official documents. The purpose of the questions was merely to assist the tax inspectors, and as they were not used as a basis for the interviews conducted the company was denied the right to access them.

Conclusions

On the same day, the SAC issued another decision on a similar matter regarding tax inspector’s notes. In this second decision it came to a different conclusion regarding the status of notes and other background materials used by the tax inspectors during the tax audit. The court determined that the requested materials were mere drafts and auxiliary notes and thus did not constitute official documents. These two decisions seem to indicate that the decisive factor is how the notes or other background material are used in the tax audit report.

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