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  • Accessing the deceased person's information

    We can only disclose a deceased taxpayer's information where it is permitted under the Taxation Administration Act 1953.

    A tax officer can lawfully disclose information concerning a deceased taxpayer to the deceased person’s legal personal representative. This is the executor or administrator of the deceased person's estate who has been granted probate or letters of administration.

    Except in limited circumstances, we won't disclose protected information to other people (including family members, an individual named as executor in a will, or their nominated representative) before probate or letters of administration are granted. Until these are obtained, we don't have confirmation that we're dealing with the person legally recognised to administer the estate.

    In limited circumstances we may need to speak directly to a person who is not the executor or administrator of a deceased person's estate. This doesn't extend to providing broader information that would assist in the administration of the estate. We'll assess any request for information on a case-by-case basis. We won't record the person or any nominated representatives as an authorised contact for the deceased estate.

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    Our legal position

    Access rules in our Online services for agents platform help ensure the new system complies with taxpayer confidentiality provisions, as they apply to deceased estates, in the Taxation Administration Act 1953 (TAA).

    Subsection 355-25(2)External Link of Schedule 1 to the TAA identifies entities (known as 'covered entities') to whom we can lawfully disclose protected information of another entity – the ‘primary entity.’ This is the deceased person.

    Under paragraph 355-25(2)(d) the legal personal representative of a primary entity is a ‘covered entity’. This is the executor or administrator of an estate of an individual who has died, with grant of probate or letters of administration.

    Subsection 355-25(2) doesn't extend to a person appointed by the executor or administrator to assist them in managing the deceased estate. Except in limited circumstances, we can't lawfully disclose a deceased person's information to tax agents or legal practitioners who are not the authorised legal personal representative for the deceased estate.

    Agents and legal practitioners

    Except in the circumstances described above, the law doesn't allow us to provide a deceased person’s information to registered tax agents, BAS agents or legal practitioners who:

    • were previously engaged by the deceased, as their authority to represent the individual ceases on death
    • represent an executor or administrator of the deceased estate.

    However, we can lawfully provide information that is requested by these representatives directly to the executor or administrator.

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    Post date of death information

    Where the executor or administrator manages income after the person's death (for example, where they continue to run a business for the deceased estate) and applies for a trust tax file number, they can appoint a legal practitioner or tax agent as an authorised contact.

    The authorised contact can access information of the deceased estate trust only, being information obtained by us after the individual's death.

    Changes impacting access to information

    We remove access to a client when we receive official notification of their death.

    From December 2019, agents who use Online services for agents and who are also the executor or administrator of an estate, can add the deceased person as a client. Agents will be required to complete a declaration advising they are authorised to access the deceased client's information.

    We also propose to use the Commissioner’s remedial power to modify the TAA to allow a deceased person’s information to be provided directly to a registered tax agent, BAS agent or legal practitioner appointed by an executor or administrator. This will still only be lawful if a grant of probate or letters of administration has been obtained.

    The legislative instrument for enacting the power is expected to be tabled for consideration by parliament in early 2020. If the legislative instrument isn't disallowed by parliament, these agents will be able to add a deceased person as a client and access their records after the legislative instrument takes effect. Legal practitioners who advise of their appointment by the executor or administrator will also be able to be added as authorised contacts on the deceased person’s records.

    In the interim, we have developed a Deceased estate data package. This provides an extract of information of the deceased, which will be provided directly to the executor or administrator. They may then pass the information on to the tax agent or legal practitioner to assist in administering the deceased estate. However, we can't disclose information directly to the tax agent or legal practitioner under the current law.

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    Last modified: 18 Dec 2019QC 56976