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124 Transitional - information obtained under amended or repealed provisions before commencement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

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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 355-55 EXCEPTION - DISCLOSURE TO MINISTERS

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355-55(1)

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Section 355-25 does not apply if:

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

(b) an item in the table in this subsection covers the making of the record or the disclosure; and

(c) if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - one of the following has agreed that the record or disclosure is covered by the item:

(i) the Commissioner;

(ii) a Second Commissioner;

(iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.

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Records or disclosures to Ministers
Item	The record is made for or the disclosure is to …	and the record or disclosure …
1	any Minister	is for the purpose of enabling the Minister to exercise a power or perform a function under a *taxation law.
2	the Minister	(a)	is about an entity; and
		(b)	is for the purpose of enabling the Minister to respond directly to the entity in relation to a representation made by the entity to:
			(i)	the Minister; or
			(ii)	another member of a House of the Parliament.
3	the Minister	is for the purpose of informing decisions made under the scheme known as the Compensation for Detriment Caused by Defective Administration Scheme.
4	the *Finance Minister	is for the purpose of:
		(a)	the waiver, or possible waiver, of a tax debt under section 63 of the Public Governance, Performance and Accountability Act 2013* ; or
		(b)	the making, or possible making, of a payment referred to in section 65 of that Act (about act of grace payments) in connection with administering a *taxation law.
5	any Minister	is for the purpose of:
		(a)	determining whether to make an ex gratia payment; or
		(b)	administering such a payment.
6	a Minister responsible for: (a) agriculture; or (aa) water; or (b) industry policy; or (c) investment promotion; or (d) taxation policy; or (e) foreign investment in Australia	(a)	is of information contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements; and
		(b)	is for the purpose of enabling that Minister to discharge that responsibility.

Note 1:

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

Note 2:

Section 19 of the Acts Interpretation Act 1901 provides that the expression " the Minister " , as used in table items 2 and 3, refers to the Minister or Ministers administering the relevant provision.

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History

S 355-55(1) amended by No 96 of 2016, s 3 and Sch 1 items 39 and 40, by inserting para (aa) in table item 6, column headed " The record is made for or the disclosure is to ... " and inserting " or Register of Foreign Ownership of Water Entitlements " in table item 6, applicable in relation to records and disclosures of information made on or after 7 December 2016, whether the information was obtained before, on or after 7 December 2016.

S 355-55(1) amended by No 126 of 2015, s 3 and Sch 1 item 603, by substituting " Section 19 " for " Section 19A " in note 2, effective 5 March 2016.

S 355-55(1) amended by No 150 of 2015, s 3 and Sch 4 item 4, by inserting table item 6, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015.

S 355-55(1) amended by No 62 of 2014, s 3 and Sch 12 item 188, by substituting table item 4, effective 1 July 2014. Table item 4 formerly read:

" 4	the *Finance Minister	is for the purpose of:
		(a)	the making, or possible making, of a payment referred to in section 33 of the Financial Management and Accountability Act 1997 (about act of grace payments) in connection with administering a *taxation law; or
		(b)	the waiver, or possible waiver, of a *tax debt under section 34 of that Act. "

S 355-55(1) amended by No 39 of 2012, s 3 and Sch 4 item 23, by substituting " *Second Commissioner " for " Second Commissioner " (first occurring) in para (c), effective 15 April 2012.

355-55(2)
The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.

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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.