Q: HMRC have bankrupted a client who owes me £2300. The accountants in bankruptcy say I cannot withhold the accounts and tax returns I have prepared. Where do I stand - do these belong to me or must I hand them over?
Mar 09 2007
Answered by: Clive Lewis Ask a question
You do not say whether you are a member of a recognised professional body which will have ethical guidance for its members. For example the Institute of Chartered Accountants in England and Wales (ICAEW) Statement 9.4 of the members’ handbook, documents and records, ownership, lien and rights of access, sets out the defining features to establish ownership of documents in normal circumstances.
Assuming it you are a chartered accountant, ordinarily as you would be acting as an agent of the client when preparing accounts or tax returns, the product of that relationship will be the client's property. However it is possible to vary this presumption by contract. Thus if the terms of business are agreed to be that ownership of the accounts or tax returns remains with the accountants and only passes on payment, as is sometimes the case, the documents can be the property of the accountant (know as retention of title).
In a bankruptcy situation however the trustee in bankruptcy effectively stands in the place of the bankrupt. The Trustee in Bankruptcy is entitled to any information that the bankrupt would have been. This means that the Trustee in Bankruptcy can request access to information. A member cannot exercise a lien over the records of a bankrupt, except where the lien relates to documents which give title to property. In such circumstances the standard answer is therefore that the information should be given and that the accountant's claim will rank as a creditor in the bankruptcy.
This is a difficult area and you may wish to seek legal advice specific to this situation.
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