Procedures for disclosing protected information

Procedures for disclosing protected information under Schedule 1 of the Taxation Administration Act 1953

Overview

1. The procedures and instructions set out in this document have been developed to satisfy the Commissioner's obligations under section 355-335 of Schedule 1 of the Taxation Administration Act 1953 (TAA).
2. Section 355-335 of Schedule 1 to the TAA requires the Commissioner to issue and publish instructions about the procedures to be followed by taxation officers when disclosing protected information under:
• section 355-55 (disclosures to Ministers)
• section 355-65 (disclosures for other government purposes)
• section 355-70 (disclosures for law enforcement and related purposes).
3. All references to legislation in this document are to Schedule 1 to the TAA, unless otherwise indicated.

Background

4. The taxation law secrecy provisions in Division 355 of Schedule 1 to the TAA apply to protected information. Protected information is defined to mean information disclosed or obtained under or for the purposes of a taxation law (other than the Tax Agent Services Act 2009), which relates to the affairs of an entity (including but not limited to the entity's tax affairs), and which identifies, or is reasonably capable of being used to identify, that entity.
5. To be protected, the information need not relate to a living individual, but can relate to any entity as defined in section 960-100 of the Income Tax Assessment Act 1997, that is:
• an individual
• a body corporate
• a body politic
• a partnership
• any other unincorporated association or body of persons
• a trust
• a superannuation fund
• an approved deposit fund.
6. Protected information may be contained in written documents, conversations, electronic recordings, transcripts or any other form in which information can be recorded. It includes information obtained directly from a taxpayer or information generated by the ATO (for instance, through collating or cross-referencing information from a variety of sources).
7. It is an offence under section 355-25 for a tax officer to disclose protected information other than to the entity who the information is about, or that entity's representative, unless the disclosure is permitted under one of the exceptions in Division 355.
8. A tax officer who proposes to disclose protected information under one of the exceptions in Division 355 must always ensure that their disclosure will fit the circumstances stipulated in the exception they propose to apply.
9. For disclosures under the exceptions in sections 355-55, 355-65 or 355-70, a tax officer must follow the instructions in this document.