Scope of our powers
Our notice powers are wide and flexible, but they are not unlimited. We endeavour to exercise our powers:
- in good faith
- in strict compliance with the law under which the notice has been issued
- for the proper purposes of that law.
Our notices will state:
- the name and address of the entity required to comply with the notice
- the law under which the notice is issued
- what the notice requires (to identify with sufficient clarity the documents sought or the information required)
- the reason we require the information
- the time and place to comply.
Our notice powers may be limited in certain ways including:
- legal professional privilege
- the accountants' concession
- where we seek access to advice for a corporate board on tax compliance risk.
We provide a detailed explanation of the limits to our notice powers under Limits to our formal powers.
If you believe that our notice (or part of it) is vague or ambiguous, you are still required to respond to it. You should contact the case officer named in the notice to clarify what is required. If a notice contains obvious ambiguities, we may decide to withdraw it and issue a new notice to you. We list the notice provisions of some of the laws we administer under Legislative references.
Notices and prosecution
Our policy is not to use our notice powers to gather evidence for the purposes of prosecution. However, information obtained under the powers may be used as evidence in a prosecution – for example, if you make a false or misleading statement to us.
Generally, if you are under investigation for a criminal offence you must still comply with a notice and cannot claim privilege against self-incrimination in these circumstances.
Third-party duty of confidentiality
Our notice powers are not restricted by claims of confidentiality. In particular, a notice operates to override any contractual obligation of the recipient to preserve confidentiality.
For example, a notice for the production of documents contained in a safe deposit box will override a bank’s duty of confidentiality. In addition, we can issue a notice to require information kept in Australia about offshore bank accounts.
Self-incrimination and spousal privilege
You cannot rely on the privilege against self-incrimination to not comply with a notice. Also, you cannot refuse to answer questions about your spouse.
If you are under investigation by another government agency, but have not been charged with an offence, we are likely to continue our investigation. If you are charged with an offence, we may defer our investigation until the matter is resolved.
If you are involved in criminal proceedings that relate to tax offences (for example, you have been charged with a tax-related offence), we may defer our investigations until the criminal matter has been resolved.
Notices issued during litigation
In some cases, a notice in relation to a matter that is subject to court proceedings may be in contempt of court. Our ability to issue a notice in these circumstances is usually unaffected when:
- the litigation is before the Administrative Appeals Tribunal
- the issues under dispute in the litigation will not be the subject of our notice powers
- we are not a party to the court proceedings.
If you receive a notice from us that relates to your current legal proceedings, you should contact us immediately to make sure we are aware of your litigation.
If you believe that our notice may be in contempt of court, you should advise our contact officer of your reasons in writing and request that the notice be withdrawn. We will consider your request and provide you with a response in writing. You will need to provide us with the following information to enable us to make a decision:
- the parties to the proceedings
- the issue in dispute
- the court or tribunal involved.
When dealing with more complex cases, we may engage advisers and withdraw the notice until the contempt of court issue is resolved. Until that decision is made, we will usually inform you about how your matter is progressing and work with our advisers to resolve the issue as quickly as we can.
If we consider that the notice could be in contempt of court, we will withdraw the notice.