Notices to produce documents

We may issue a notice requiring you to produce documents in your custody or under your control if, for example:

  • a notice requiring you to give information has revealed other documents that we require
  • a company with a presence in Australia has custody or control of documents that are located overseas.

Identification of documents

Our notices will identify the documents we require with sufficient clarity in the given circumstances.

Retention of documents

We only retain your original documents for as long as is reasonably necessary – for example, a reasonable period of time to make copies.

We grant any reasonable request by the owner of the documents to have access to them while they are in our custody, and may also provide copies of documents if appropriate in the circumstances.

Custody or control of documents

A notice to produce documents requires the recipient to produce documents in their custody or under their control.

  • Custody refers to situations where you, as the recipient of a notice, have direct physical possession of a document.
  • Control refers to situations where you may lack physical possession of a document but have the right or power to require another person to produce it to you.

Example – Documents within control but not custody

Steven and Justin, who run a property developing partnership, each receive a notice from us requiring particular documents in connection with their assessments. Although Steven and Justin own the documents, they are physically held at their bank.

Steven and Justin are required to produce the documents as set out in the notice. Although Steven and Justin do not have physical custody of the documents, they have legal control given they have the ability to obtain them from the bank.

End of example

A bank with physical custody of the contents of safe deposit boxes may also be contractually bound to not use its keys to those boxes – in this situation, the bank is required to produce the contents of the box to us as required by our notice.

Example – Documents within custody but not control

XYZ Bank Ltd receives a notice from us requiring the production of documents held by it on behalf of its clients, Tracy and Karen, who use a safe deposit box to hold documents and other items.

XYZ Bank Ltd is required to produce the documents in the safe deposit box according to our notice.

In this case, XYZ Bank Ltd has physical custody of the documents even though it does not have control of those documents.

End of example

In some cases, a person who had legal ownership of the documents we require may be unable to produce them to us because they have been lost, destroyed or are withheld by a third party. In this situation, we may either:

  • allow alternative documents to be provided
  • approach the third party for the documents.

Example – Documents not within custody or control

A company has received a notice to produce particular company records. These records are held by the company's accountants under an equitable lien following a dispute over unpaid fees. The accountants have refused to give the documents to the company.

The company will not have to produce the documents because they are not within its custody or control. To obtain the records, a notice could instead be served on the accountants.

End of example

We may use a notice to require the production of documents held outside Australia. For example, the owner with custody or control of the documents may be in Australia and the records we need are held by an overseas bank on their behalf. We explain our approach to issuing notices for international information gathering under Gathering offshore information.

Consolidated groups

If you use a consolidated group for tax purposes, we may vary our approach when issuing notices to entities within the consolidated group. This is likely to be the case where records are held by several group entities. Although a head company is responsible for keeping records, it must also ensure its subsidiaries keep all records necessary to satisfy the group’s record-keeping responsibilities. In these cases, we may need to ask about the location of the records and who is in control of them before we issue a notice.

When seeking the production of documents, we would normally issue the notice to the entity with custody of those documents. If we seek information (not documents) we consider which entity is best placed to give us that information – for example, if our enquiry relates to consolidated income tax return details, the information would generally be sought from the head company. If it relates to the rationale behind a particular transaction, the notice is likely to be sent to the entity (or an officer of that entity) that was a party to the transaction.

Example – Notice to subsidiary

Headco is the head company of a consolidated group consisting of Subco, Ausco and Vicco. During informal discussions with our officers, Headco advised that each subsidiary has custody of the records relating to transactions they undertake. Headco has entered into arrangements with the subsidiaries which brings the records under the control of Headco.

Subco receives a notice requiring production of documents relating to a transaction it undertook after the group was formed. In this case, we would usually issue our notice to Subco (which currently has custody of the records) although we also have an option of issuing the notice to Headco (which has control of the records).

End of example
    Last modified: 26 Jul 2016QC 37592