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Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES

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Note: See section 3AA .

Chapter 5 - Administration

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PART 5-1 - THE AUSTRALIAN TAXATION OFFICE

Division 355 - Confidentiality of taxpayer information

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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124 Transitional - information obtained under amended or repealed provisions before commencement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 .

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Div 355 formerly read:

Division 355 - Confidentiality

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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.

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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

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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.

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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.

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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

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Operative provisions

SECTION 355-72 EXCEPTION - DISCLOSURE TO CREDIT REPORTING BUREAUS

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Exception - entities in declared class of entities

355-72(1)
Section 355-25 does not apply if:

(a) the entity is a *taxation officer; and

(b) the record is made for, or the disclosure is to, a *credit reporting bureau; and

(c) the record or disclosure is of information that relates to the *tax debts of an entity (the primary entity ) that is included in a class of entities declared under subsection (5) of this section; and

(d) the record or disclosure is for the purpose of enabling the credit reporting bureau to prepare, issue, update, correct or confirm credit worthiness reports in relation to the primary entity; and

(e) in the case of a disclosure of information other than for the purposes of updating, correcting or confirming information previously disclosed under this exception - both:

(i) the Inspector-General of Taxation has been consulted on the disclosure; and

(ii) 28 days have passed after a notice under subsection (2) of this section was given to the primary entity for the disclosure.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .

Notice of disclosure

355-72(2)
The Commissioner must notify a primary entity if:

(a) information that relates to the primary entity is to be disclosed to a *credit reporting bureau under this section; and

(b) the information is not information that updates, corrects or confirms the information previously disclosed under the exception in subsection (1).

355-72(3)
The notice must:

(a) be in writing; and

(b) explain the type of information that is to be disclosed to the *credit reporting bureau; and

(ba) explain:

(i) why the primary entity is included in a class of entities declared under subsection (5); and

(ii) the steps (if any) the primary entity may take to no longer be included in that class before the disclosure occurs; and

(c) set out the amount of any *tax debts payable by the primary entity at the time the notice is given by the Commissioner; and

(d) explain how the primary entity may make a complaint in relation to the proposed disclosure of the entity ' s information; and

(e) be served on the primary entity.

Exception - entities no longer in declared class of entities

355-72(4)
Section 355-25 does not apply if:

(a) the entity is a *taxation officer; and

(b) the record is made for, or the disclosure is to, a *credit reporting bureau; and

(c) the record or disclosure is of information that relates to the *tax debts of an entity that:

(i) has had information previously disclosed under the exception in subsection (1) of this section; and

(ii) is no longer an entity that is included in a class of entities declared under subsection (5) of this section; and

(d) the record or disclosure is of information that relates to why the entity to which the information relates is no longer included in a class of entities declared under subsection (5) of this section; and

(e) the record or disclosure is for the purpose of enabling the credit reporting bureau to update or correct credit worthiness reports in relation to the entity to which the information relates.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .

Class of entities

355-72(5)
The Minister may, by legislative instrument, declare one or more classes of entities for the purposes of this section.

355-72(5A)
Before making an instrument under subsection (5), the Minister must:

(a) consult the Inspector-General of Taxation; and

(b) consider any submissions made by the Inspector-General of Taxation because of that consultation.

355-72(6)
Before making an instrument under subsection (5), the Minister must:

(a) consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010 ) and would be affected by the proposed instrument; and

(b) consider any submissions made by the Information Commissioner because of that consultation.

Credit reporting bureau

355-72(7)
An entity is a credit reporting bureau if the entity is recognised by the Commissioner as an entity that prepares and issues credit worthiness reports in relation to other entities.

355-72(8)
The Commissioner must keep and publish a list of credit reporting bureaus on the Australian Taxation Office website.

355-72(9)
The list of credit reporting bureaus is not a legislative instrument.

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Taxation Administration Act 1953

Division 355 - Confidentiality

Guide to Division 355

Subdivision 355-A - Protection of confidentiality of indirect tax information

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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.