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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124 Transitional - information obtained under amended or repealed provisions before commencement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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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-E - Other matters

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Operative provisions

SECTION 355-330 INJUNCTIONS TO PREVENT CONTRAVENTION OF NON-DISCLOSURE PROVISIONS

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Injunctions

355-330(1)
If an entity has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute an offence against this Division, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:

(a) restraining the entity from engaging in the conduct; and

(b) if in the court ' s opinion it is desirable to do so - requiring the entity to do any act or thing.

Interim injunctions

355-330(2)
If an application is made to the court for an injunction under subsection (1), the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

Discharge or variation of injunctions

355-330(3)
The court may discharge or vary an injunction granted under this section.

Exercise of power to grant injunctions

355-330(4)
If an application is made to the court for the grant of an injunction restraining an entity from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:

(a) if the court is satisfied that the entity has engaged in conduct of that kind - whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will engage in conduct of that kind - whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other entity if the entity engages in conduct of that kind.

355-330(5)
The power of the court to grant an injunction requiring an entity to do a particular act or thing may be exercised:

(a) if the court is satisfied that the entity has refused or failed to do that act or thing - whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing - whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other entity if the entity refuses or fails to do that act or thing.

No undertakings as to damages

355-330(6)
If the Commissioner makes an application to the court for the grant of an injunction under this section, the court must not require the Commissioner or any other entity, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

Other powers of the court unaffected

355-330(7)
The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

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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.