Attorney-Client Privilege In Tax Laws

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1 1 Attorney-Client Privilege In Tax Laws Re: Attorney-Client Privilege versus the Powers of the Assessment Officer Introduction As early on as during their first days in university, lawyers all learn that their relationship with their clients is fully privileged. But how does this fit with a Tax Authority (hereafter, the 'Authority') tax assessor's power to demand information concerning any taxpayer from their advocate? But, before we go on to explore the answer to this, where does attorneyclient come from what is the legal authority for it? Under the Evidence Ordinance, an advocate like a medical doctor, a psychologist, a clergyman and even a social worker may elect not to comply with the general duty (that would otherwise apply) to give evidence in court, or to any other competent authority (see section 52). Indeed, the Supreme Court has ruled in similar vain in respect of journalists' privilege (Citrin v. The Bar Association's Disciplinary Tribunal). Trustees too then, perhaps? According to at least one distinguished academic authority on Israeli trust law, a court would not treat a trustee the same. Lastly, it is interesting to note that information gathered by the Tax Authority may not be given to the taxpayer's spouse, to such government authorities as the National Insurance Institution, or to police even except by special permission from the Minister of the Treasury. But, to return now to legal practitioners, from the ethical perspective, the Bar Association Law 1961 has gone even further than the Evidence Ordinance: an advocate must not reveal privileged information (see more below). Indeed, this is also mirrored in the Bar Association's own internal regulations. The Tax Authority's Powers under The Income Tax Ordinance The Income Tax Ordinance (hereafter, the 'Ordinance') allows the Authority's tax assessors to obtain information about any taxpayer, inter alia, from an advocate with whom they have had business contact (Section 135A(a)). The ordinance qualifies this in Section 135A(b), stating that the aforesaid does not put any advocate under any duty to disclose information or to provide documents which are otherwise privileged by law.

2 2 The interrelationship between the Authority's power to obtain information and the right to privilege is dealt with by Sections 235A D of the Ordinance. Regulation of the Privilege of Documents vis à vis The Tax Authority Section 90 of the Bar Association Law 1961 states that: 'Any correspondence or exchange between a client and his advocate in connection with professional services rendered by the advocate to his client will not be disclosed by the advocate in any legal proceedings, investigation or search, except where the client has waived privilege.' The effect of sections 235A to 235D of the Ordinance was thus to change the legal position back to what it had been before the above Law came into force narrowing the scope of privilege over business or criminal information where such is information is relevant for tax purposes. Section 235A Definitions Section 235A includes the following definitions: 'Professional secret' 'any communication between a client and an advocate, whether oral or written, which is substantively connected to the professional service rendered by the advocate to the client, including records prepared by the advocate for his own use, on condition that they are substantively connected to the said professional service. " 'Privileged document' 'a document containing a professional secret'; The Authority's explanatory notes give examples of documents which would be considered privileged, and of those which would not. For example, the Authority's position is consistent with the Law above in that a document including notes taken by an advocate for his own use in relation to professional services rendered by herself to her client is indeed privileged. By contrast, the Authority's position is that the following documents are not privileged, even if given to an advocate by their client, or on the client's behalf, and even if so given for the purpose of the advocate's giving legal advice or in the course thereof, i.e.: a) contracts drawn by an advocate as trustee; b) financial books and contracts left by a client with his advocate in order to allow the latter to prepare their legal opinion; c) contracts drawn by an advocate, following legal consultation d) documents pertaining to deposits made by a client, even if these were

3 3 incidental to the giving of legal advice; e) client bank accounts; f) bank accounts held in the advocate's name as trustee. The Authority's grounds for holding that these documents are not privileged are that these documents are self-contained, as it were, in the sense that they do not include any exchange between the advocate and the client, taking place in the course of giving legal advice, or the putting down in writing of any such exchange. More fundamentally, the Authority takes the view that any information which must be brought before the tax assessor should not be shielded from this merely by reason of it having been delivered to an advocate or found in an advocate's possession, even if this was for the purpose of giving legal advice. Section 235B an Advocate's Duty to Hand Over Documents Section 235B states that notwithstanding the provisions of The Bar Association Law 1961, an advocate required to do any of the following by the tax assessor must comply, namely to hand over to the assessor any document in his or her possession, to allow the assessor to seize and examine any such document as mentioned above, and to generally allow the assessor to take any other action in relation to such a document in accordance with the assessor's powers under the Ordinance. However, 'an advocate is under no obligation to do so if he maintains that the relevant document is privileged.' 235C The Appropriate Procedure for an Application for a Privilege Order Section 235C sets out the appropriate procedure to be followed where an advocate opposes the seizure of documents by the tax assessor (and therefore wishes to apply to the court for a privilege order). A tax assessor seeking to seize and inspect any document in the face of such opposition on the part of the advocate alleging for the power to do so under section 235C must do as follows: a) take the document and, without looking at it, place it immediately into a parcel (envelope or other 'container') in the presence of the advocate, b) close it, c) write the name of the client to whom the document relates, d) sign it and deliver it to the court; An advocate who wishes to do so may also sign the parcel and accompany the assessment officer on the latter's way to deliver the parcel to court. The advocate from whose possession the documents were seized, or the client to whom they relate, is entitled to, within seven days of such seizure, apply to the appropriate County court for an order declaring such

4 4 documents privileged wholly or in part. Section 235D The Outcome of Privilege Proceedings Section 235D provides what are the types of possible outcomes to an application for a privilege order: a) upholding the application, declaring the documents privileged and returning them to the advocate; b) rejecting the application refusing to grant the order and returning the documents to the assessment officer; c) finding the documents privileged only in part. In such a case the judge is to furnish the tax assessor with a copy of those portions of the documents in question that are not found privileged. The judge's decision is absolutely final: it cannot be appealed or in any way otherwise challenged or reviewed. Case Law Case law is inconsistent with regard to one question in particular with conflicting decisions from the Tel Aviv Magistrates' Court and County Court namely whether it is possible for documents found in the client's possession to be protected by attorney-client privilege. Since even the decisions of the higher of the two courts do not form binding precedent under the Israeli law but only accorded persuasive force the point would remain moot until The Supreme Court has had a chance to rule on this matter. In Motion No /91*, advocates contended for privilege over cassettes seized by the Tax Authority at their client's home. The advocates maintained that the cassettes were there rather than in their own offices by reason only of those offices being refurbished at the time, as well as of a family relation with the client, and that, accordingly, the client's home should be treated as though it were the advocates' own offices for the purposes of determining the issue of privilege. The President of the Tel Aviv County Court dismissed the application, stating that there are two cumulative requirements to give rise to privilege: a) The document was found in the possession of an advocate, and b) The advocate contends for privilege over the document.

5 5 Thus, where a document is not in the possession of an advocate, privilege cannot be triggered; 'the possession of an advocate' must not be extended so as to include her client's own home. More recently however, the Tel Aviv Magistrates' Court, also led by its President, has accepted the submissions of the Israel Bar Association and Criminal Defense Service (legal aid) both joined in on an application for a privilege order as amici curiae in finding the question of 'in whose possession the documents were at the time of seizure by the tax assessor?' simply immaterial. It is the contents and nature of the documents that give rise to privilege, not their physical whereabouts. Thus, documents which are the product of legal services (i.e., containing legal advice etc.), are privileged irrespective of their physical location. However, such a location does have a bearing on the burden of proof. To be sure, whether the documents in question were found in the client's possession or in the advocate's, the burden is always on the applicant to show that, by reason of their contents and nature these documents should be privileged. However, this burden is harder to discharge where documents were in the client's possession. Given this inconsistency in case law the prudent advocate would do wisely to go by the stricter of the two decisions, i.e., to keep any documents which, in the advocate's own opinion, would be properly classified as privileged documents, in his or her own possession; the latter concept being narrowly construed. Advocates should bear in mind that, whenever such documents are nevertheless removed from their offices e.g., taken to the offices of an accountant, for the latter to give professional advice on a certain matter the shroud of privilege, as it were, may also be removed. Conclusion We would be wrong to think that any document held by an advocate is, without more, privileged. For privilege to bite, as it were, vis à vis the Tax Authority in specific, the documents in question must, first, contain in them a 'professional secret' in accordance with the appropriate definition in section 235A of the Income Tax Ordinance; and second, be found in the advocate's own possession, narrowly construed. Adv. Alon Kaplan

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