Company directors and taxpayer information about companies
If you're a director, or ex-director, of a company that's now insolvent, there may be situations where you would like to access information we hold about the company.
However, even with your role as director or ex-director, we will not always be able to give you information about the company. This is because a company and each of its directors are separate legal entities.
ATO officers must comply with the strict taxpayer confidentiality provisions in taxation law, outlined in Division 355 of Schedule 1 to the Taxation Administration Act 1953. They're prohibited from disclosing information about an identifiable entity we obtained for the purposes of taxation law, except in circumstances specified in the confidentiality provisions.
These confidentiality provisions don't permit ATO officers to disclose information about a company to one of its directors simply because they are a director. However, under the confidentiality provisions, an ATO officer can disclose information about a solvent company to the public officer appointed by the company in accordance with taxation law, or to a representative nominated by the company in a form approved for that purpose. This is because, under the confidentiality provisions, taxation officers may disclose protected information to ‘covered entities’, and public officers of companies and nominated representatives of companies are both ‘covered entities’.
Once a company is insolvent, its pre-insolvency ‘covered entities’ are no longer relevant for the purpose of accessing information about the company. ATO officers can only disclose information about an insolvent company to the ‘covered entities’ for the insolvent company – the administrator or liquidator, or a representative nominated by the administrator or liquidator.
It's also possible for an ATO officer to disclose information about a company (whether solvent or insolvent), to someone other than the company’s ‘covered entity’, for the ATO’s purposes, in order to assist the ATO to administer taxation laws. For example, the taxation affairs of a company may have an impact on the taxation obligations of another person, such as a director of the company. An ATO officer may decide they need to disclose information about the company to the director to enable the director to understand and comply with their own taxation obligations.
Sometimes directors of a company apply to access ATO information under the Freedom of Information Act 1982. You always have the right to lodge an FOI application. However, FOI is not a 'way around' taxpayer confidentiality restrictions – we can't disclose taxpayer information to you under the FOI Act if the confidentiality rules discussed in this article prohibit us from disclosing the information to you.
If you wish to access information held by the ATO about a company, you should start by talking with an ATO representative you've been dealing with, such as audit officers who have been auditing your taxation affairs. If you haven't had any recent contact with the ATO, you can call us on 13 28 66.
Once a company is insolvent, its pre-insolvency ‘covered entities’ are no longer relevant for the purpose of accessing information about the company. This has implications for former directors trying to obtain information about their company from the ATO.