SCHEDULE 1
-
COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES
History
Sch 1 inserted by No 178 of 1999 (as amended by No 179 of 1999 and No 44 of 2000).
Note: See section
3AA
.
Chapter 5
-
Administration
History
Ch 5 title inserted by
No 73 of 2006
, s 3 and Sch 5 item 44, effective 1 July 2006.
PART 5-1
-
THE AUSTRALIAN TAXATION OFFICE
Division 355
-
Confidentiality of taxpayer information
History
Div 355 substituted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
No 145 of 2010, s 3 and Sch 2 items 124 and 125 contain the following transitional provisions, effective 17 December 2010:
124 Transitional
-
information obtained under amended or repealed provisions before commencement
If:
(a)
before the commencement of this item, information was acquired by an entity under, or for the purposes of, a taxation law (within the meaning of the
Income Tax Assessment Act 1997
), other than as a taxation officer; and
(b)
the information is protected information within the meaning of section
355-30
of Schedule 1 to the
Taxation Administration Act 1953
(as inserted by item 1 of Schedule 1 to this Act);
then, after that commencement, the information is taken to be information acquired by the entity under an exception in Subdivision
355-B
or
355-C
in Schedule 1 to the
Taxation Administration Act 1953
(as inserted by item 1 of Schedule 1 to this Act).
125 Transitional provision
-
authorisations
(1)
If, immediately before the commencement of this item, an officer of a law enforcement agency was an authorised law enforcement agency officer within the meaning of the
Taxation Administration Act 1953
(as in force at that time), the officer is taken, on and after that commencement, to be an authorised law enforcement agency officer within the meaning of the
Income Tax Assessment Act 1997
.
(2)
If, immediately before the commencement of this item, a person employed under paragraph 84(1)(a) or (b) of the
Australian Security Intelligence Organisation Act 1979
was an authorised ASIO officer within the meaning of the
Taxation Administration Act 1953
(as in force at that time), the person is taken, on and after that commencement, to be an authorised ASIO officer within the meaning of the
Income Tax Assessment Act 1997
.
History
S 355-5 inserted by
No 73 of 2006
.
Div 355 formerly read:
Division 355
-
Confidentiality
History
Div 355 inserted by
No 73 of 2006
, s 3 and Sch 5 item 49, effective 1 July 2006.
Guide to Division 355
SECTION 355-1 WHAT THIS DIVISION IS ABOUT
This Division prohibits the disclosure of indirect tax information by officials except in certain circumstances.
History
S 355-1 inserted by
No 73 of 2006
, s 3 and Sch 5 item 49, effective 1 July 2006.
Subdivision 355-A
-
Protection of confidentiality of indirect tax information
History
Subdiv 355-A inserted by
No 73 of 2006
, s 3 and Sch 5 item 49, effective 1 July 2006.
SECTION 355-5 PROTECTION OF CONFIDENTIALITY OF INDIRECT TAX INFORMATION
Object
355-5(1)
The object of this section is to protect the confidentiality of taxpayers
'
personal tax affairs by restricting what you may do with *indirect tax information and *indirect tax documents.
Offence
355-5(2)
You commit an offence if:
(a)
you:
(i)
make a record of information; or
(ii)
disclose information to anyone else; and
(b)
the information was disclosed to you, or obtained by you, in the course of:
(i)
your appointment or employment by the Commonwealth; or
(ii)
the performance of services by you for the Commonwealth; or
(iii)
the exercise of powers, or the performance of functions, by you under a delegation by the Commissioner; and
(c)
the information was disclosed to you, or obtained by you, under an *indirect tax law; and
(d)
the information relates to the affairs of an entity other than you.
Penalty: Imprisonment for 2 years.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
355-5(3)
Strict liability applies to paragraph (2)(c).
Note:
For strict liability, see section 6.1 of the
Criminal Code
.
355-5(4)
Subsection (2) does not apply if you make the record for, or you disclose the information to, an entity who is not a Minister and:
(a)
the making of the record or the disclosure is for the purposes of an *indirect tax law; or
(b)
the making of the record or the disclosure is in the course of:
(i)
the performance of the duties of your appointment or employment by the Commonwealth; or
(ii)
the performance of services by you for the Commonwealth; or
(iii)
the exercise of powers, or performance of functions, by you under a delegation by the Commissioner.
Note 1:
A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the
Criminal Code
.
Note 2:
It is not a breach of subsection (2) to record or disclose information in accordance with an obligation Australia has under an agreement with another country. See section
23
of the
International Tax Agreements Act 1953.
History
S 355-5(4) amended by No 100 of 2006, s 3 and Sch 2 items 4 to 6, by substituting para (a) and inserting Note 2, applicable to requests for the exchange of information made after 14 September 2006. Para (a) formerly read:
(a)
the making of the record or the disclosure is for the purposes of:
(i)
an *indirect tax law; or
(ii)
complying with an obligation Australia has under an agreement with another country; or
355-5(5)
Subsection (2) does not apply if:
(a)
you are:
(i)
the Commissioner; or
(ii)
a Deputy Commissioner; or
(iii)
an individual authorised by the Commissioner or a Deputy Commissioner to disclose the information; and
(b)
an item in the following table covers your disclosure:
|
Disclosures
|
|
Item
|
The disclosure is to...
|
and the disclosure...
|
|
1 |
any entity (other than a Minister) |
is for the purpose of the entity carrying out functions under a *taxation law. |
|
2 |
the Administrative Appeals Tribunal |
is in connection with proceedings under a *taxation law. |
|
3 |
the Australian Statistician |
is of information to be used for the purposes of the
Census and Statistics Act 1905
. |
|
4 |
the Chief Executive Officer of the Commonwealth Services Delivery Agency |
is of information to be used for the purpose of the administration of the social security law (within the meaning of the
Social Security Act 1991
). |
|
5 |
the Chief Executive Officer of Customs |
is for any purpose. |
|
6 |
the Secretary of the Department dealing with matters relating to the social security law (within the meaning of the
Social Security Act 1991
) |
is of information to be used for the purpose of the administration of that law. |
|
7 |
an individual who holds an office of a State or Territory, being an office prescribed for the purposes of this table item |
both:
(a) relates to alcoholic beverages; and
(b) is for the purpose of the individual administering an *arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages. |
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5): see subsection 13.3(3) of the
Criminal Code
.
Protection of confidentiality of indirect tax information and documents from courts
355-5(6)
You are not to be required:
(a)
to disclose *indirect tax information to a court; or
(b)
to produce an *indirect tax document to a court;
unless it is necessary for the purposes of an *indirect tax law.
History
S 355-5 inserted by
No 73 of 2006
, s 3 and Sch 5 item 49, effective 1 July 2006.
Act No 145 of 2010, s 3 and Sch 1 item 3 contains the following transitional provisions, effective 17 December 2010:
3 Transitional
-
authorised representatives
(1)
If:
(a)
at any time before the commencement of this item, an entity (the
covered entity
) had been nominated by another entity (the
primary entity
) to act on the primary entity
'
s behalf with respect to protected information that relates to the primary entity; and
(b)
immediately before the commencement of this item, the nomination was in force;
the covered entity is taken, on and after that commencement, to be an entity covered by subsection
355-25(2)
in Schedule
1
to the
Taxation Administration Act 1953
.
(2)
To avoid doubt, subitem (1) does not prevent the primary entity from revoking the nomination.
Subdivision 355-B
-
Disclosure of protected information by taxation officers
Operative provisions
SECTION 355-25
OFFENCE
-
DISCLOSURE OF PROTECTED INFORMATION BY TAXATION OFFICERS
355-25(1)
An entity commits an offence if:
(a)
the entity is or was a *taxation officer; and
(b)
the entity:
(i)
makes a record of information; or
(ii)
discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection
(2)
) or to a court or tribunal; and
(c)
the information is *protected information; and
(d)
the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
355-25(2)
An entity (the
covered entity
) is covered by this subsection in relation to *protected information that relates to another entity (the
primary entity
) if:
(a)
the covered entity is the primary entity
'
s *registered tax agent or BAS agent; or
(b)
the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity
'
s affairs relating to one or more *taxation laws; or
(ba)
the covered entity is a public officer (within the meaning of section
252
or
252A
of the
Income Tax Assessment Act 1936
) of the primary entity; or
(c)
the primary entity is an *incapacitated entity and the covered entity is a *representative of the incapacitated entity; or
(d)
the covered entity is the primary entity
'
s *legal personal representative; or
(e)
the covered entity is the primary entity
'
s guardian where the primary entity is a minor or suffers from mental incapacity; or
(f)
the covered entity and the primary entity are members of the same *consolidated group or *MEC group; or
(g)
the covered entity is a representative of the primary entity who has been nominated by the primary entity in the *approved form to act on that entity
'
s behalf with respect to protected information; or
(h)
the covered entity is the registered tax agent or BAS agent of another covered entity mentioned in paragraph
(c)
,
(d)
or
(e)
in relation to the relevant primary entity mentioned in those paragraphs; or
(i)
the covered entity is a legal practitioner representing another covered entity mentioned in paragraph
(c)
,
(d)
or
(e)
in relation to the affairs of the relevant primary entity mentioned in those paragraphs relating to one or more taxation laws.
History
S 355-25(2) amended by No 127 of 2021, s 3 and Sch 3 item 47, by inserting para (h) and (i), applicable in relation to the making of a record or the disclosure of information occurring on or after 1 January 2022, whether the information was acquired before, on or after 1 January 2022.
S 355-25(2) amended by No 21 of 2015, s 3 and Sch 7 item 40, by substituting para (b) and inserting para (ba), applicable in relation to records and disclosures of information made on or after 20 March 2015 (regardless of when the information was acquired). Para (b) formerly read:
(b)
the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity
'
s *tax affairs; or
History
S 355-25 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
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