Our formal access powers

Overview

We only exercise our rights of access for the purposes of the laws we administer. In most cases, this is only where we cannot obtain the documents or information we require under a cooperative approach.

When using our access powers, we are authorised to enter and remain on any land, premises or place and have full and free access to books, documents, goods or other property. We can make copies of documents for our records, but cannot seize or remove your documents without your consent. We can only exercise our rights of access for the purposes of the applicable laws we administer.

If we visit your premises, you must give us reasonable assistance and provide adequate facilities. Penalties and prosecution may apply if we are obstructed from gaining access or where reasonable facilities or assistance has not been provided.

We will generally give you prior notice before exercising an access power. However, in exceptional circumstances we may not give you notice beforehand – for example, if we believe that the documents we need may be destroyed.

Our access powers are limited by legal professional privilege, the accountants' concession and the corporate board advice concession. Our access powers are not restricted by claims of confidentiality or privilege against self-incrimination.

The decision to use our access powers is reviewable by the Federal Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977. You have the right to a 'statement of reasons' in respect of our decision under section 13 of the Act.

We list the main legislative provisions supporting our access powers under Legislative references.

Details on the number and type of access taken are available in our Annual Report.

Enquiries about current or future tax affairs

Our access may involve gathering information and documents that relate to current year or future year transactions or planning, in addition to past income years. We may use our access powers to investigate matters that relate to an assessment of income before the return is lodged. Provided these enquiries are undertaken for the purposes of administering the law, our access powers can be used to obtain documents and information relating to:

• transactions commenced in the current year, but yet to be completed
• tax products and tax schemes
• transactions that were not carried out, but explain the tax implications of completed transactions.

This type of access can help us identify emerging trends, tax schemes and tax products – for example, we may make enquiries about a tax scheme by accessing a tax adviser’s client base. This approach provides important information about potential tax implications of future transactions.

The grounds for review of a decision to use our access powers are set out in section 5 of the Administrative Decisions (Judicial Review) Act 1977.

What to expect from us

Use our access powers for the purposes of the law

We do not use our access powers to gather evidence for the purpose of prosecuting a breach of an Act. However, evidence already collected using our access powers may be used to prosecute an offence under the TAA or the Criminal Code Act 1995 at the discretion of the court.

Act in good faith

We will exercise the right of access in good faith. We will conduct our visit with honesty and without malice or intent to defraud, deceive or derive personal advantage.

Use the information we already have

Whenever possible, we will use the information we already have, rather than seek access to the same information – for example, if you have previously supplied information to us for a private ruling request.

Determine what information we need before our access visit

We will determine as far as possible the books, documents and papers we need – and whether the information they might contain is necessary for our access purpose. We will usually advise you why we need the documents.

Establish where the information is located

Before seeking access, we will consider whether the information we require can be obtained from another source. If the information is available from more than one source, we will consider the cost of obtaining the information from each source and who should bear the cost of obtaining it.

Access documents and information from third parties if necessary

In most cases, we will try to obtain the information or documents from you before contacting a third party.

Use a cooperative approach where possible

We prefer to access information using a cooperative approach. We will generally not use our access powers if we think the information can be obtained by telephone, sending a letter or searching other sources. We will advise you when we are relying on your cooperation to enter the premises and view the documents and information.

We may need to use our access powers where you have withdrawn your cooperation or in other situations, such as third-party access, or for reasons of privacy or confidentiality.

Scope of our powers

The use of our access powers is not limited to the tax affairs of a person who is subject to our compliance activity. We may also use them to make general enquiries – for example, to identify persons engaged in a particular activity.

Our access powers can only be used:

• by authorised persons
• in good faith
• for the purposes of the law we are administering.

Authorised officer

Our rights of access must be exercised by authorised persons only, and they can only access documents for which we have authority under the relevant law. However, a person may be authorised to access documents for more than one purpose.

Authorised persons cannot enter and remain on your premises without producing their written authorities, unless they have your consent. Anyone lawfully on your premises may inspect these written authorities and make a note of their contents. For security reasons, we do not allow the written authorities to be photocopied, or to leave the authorised persons' possession.

Documents and information obtained in the course of an access visit can be provided to other officers involved in the case who did not attend.

Acting in good faith

We are required to act in good faith when exercising our access powers.

We use a risk-based approach to formulate our compliance strategies. Your risk categorisation may help guide our approach when we gather information from you. We are more likely to use our access powers when seeking information from taxpayers we regard as higher risk because of their relative size, nature of transactions, tax performance or compliance history.

When exercising our access powers we may also look into the affairs of a particular category of taxpayers.

Purposes of the Act we are administering

We can only exercise our access powers for the purposes of a particular Act and are restricted by the provisions of those Acts. Although we are free to inspect documents and their contents, our access powers do not allow us to copy them without making some effort to consider their relevance.

We will only copy documents that are reasonably relevant to our investigation or other tax matters. We will not copy documents in bulk without initially attempting to determine their relevance, and will consider the nature, volume and location of documents before taking copies. We sometimes use a keyword search – for example:

• the name of a jurisdiction where an investment was placed
• the section of the Act
• the name of the arrangement.

Our access powers may be limited in certain ways, including claims for:

• legal professional privilege
• the accountants' concession
• the corporate board advice concession.

We will generally give you adequate time to consider or obtain advice about your claims. The time we allow you to consult with your adviser will depend on the circumstances, including:

• the volume of data
• the availability of our specialist officers (for example, forensic specialists, interpreters and legal advisers)
• the proximity of your advisers to the information.

When requesting information that could be subject to a claim, we may:

• adopt a staged approach and accept the documents in batches (for example, if we have requested a large amount of electronic data)
• conduct a keyword search of computer records – we expect these searches will be completed without initially reviewing each item for a potential claim.

We provide a detailed explanation of the limits to our access powers under Limits to our formal powers.

Accessing land, premises or a place

We have statutory rights of immediate access under our access powers, although we will usually give you prior notice of our intention to access your records.

Before entering premises to access documents or information, we will usually try to locate an authorised person within the organisation or wait for them to arrive.

We may agree to postpone our examination of documents in respect of which you claim that access may be restricted for a reasonable amount of time if your adviser is not immediately available. If we do not postpone our access visit, we generally seek your agreement to continue our visit and quarantine those documents that may be subject to your claim.

Where there is a large amount of data, we may agree to a staged approach so that the documents can be reviewed in batches.

Accessing a private residence

If we are contemplating access to a private residence, we will first consider whether there are alternative ways of obtaining the documents and evidence.

When using our access powers to gain access to a private residence, we:

• have at least two of our officers attend the premises
• conduct the access during business hours, as far as possible
• attend with a female officer if we reasonably expect a female to be present at the residence.

Timing of visit

We usually discuss the timing of our access visit with you prior to our visit. We may consult with you beforehand to:

• give you reasonable notice of our intention to take access
• establish a convenient time for the access visit
• give you information about your rights and obligations
• seek your undertaking to keep documents secure
• determine who should be contacted at the time of access.

Our right of access can be exercised at all reasonable times. Access during your business hours is generally accepted to be reasonable. We may also agree to have access outside these hours to suit your availability or workloads. We usually seek your agreement if we require access to your premises outside business hours.

Maintaining the integrity of documents we wish to access is paramount. We may need to remain on your premises for an extended length of time to complete the access and keep the documents secure.

If we need to be at your premises for an extended period of time, we will work with you to avoid inconvenience. We may agree to secure the documents by sending them to an independent third party for keeping, or by placing them in a protected location.

When accessing documents and information at your premises, we have a statutory right to remain on the premises. We are protected from an action for trespass when acting in good faith and within the powers conferred by the law.

Immediate access

In some cases, having entered your premises and examined documents in cooperation with you, we need to move to a formal approach and use our access powers. These circumstances include where:

• you withdraw your cooperation so that we are no longer confident of obtaining all relevant documents
• we become aware of a second set of records, or that relevant information is being withheld
• we discover that documents are to be shredded, and you do not allow us to examine the documents before they are destroyed
• we discover information that was claimed not to exist
• you claim that documents are subject to privilege without providing any basis for the claim
• we have a reasonable belief that documents will be disposed of, altered or destroyed.

Providing reasonable facilities and assistance

An occupier of land, premises or a place has a legal obligation to provide all reasonable facilities and assistance to us when we visit the premises and exercise our access powers.

When visiting land, premises or a place, we require the reasonable use of your photocopiers, telephones, light and power to be provided to us. We may also require facilities to extract relevant information stored on computers or other electronic devices, and adequate space to work.

If we need your assistance or facilities, we will keep any disruption to a minimum wherever possible. If we need to search paper or computer records, we will leave those records as we found them.

Your reasonable assistance may include:

• answering questions about the location of books, documents or other records
• providing computer passwords or logging on to the computer and then allowing us to operate it
• advising us who might have the password to the computer or other device
• removing obstructions, such as unlocking facilities (if within your power) or suggesting other reasonable methods of obtaining access
• explaining index systems or computer folders (if necessary) to identify, interpret and locate books and documents
• explaining codes and symbols when this is necessary to identify, interpret and locate books and documents
• locating user guides to explain the computer program that needs to be accessed
• providing codes and passwords to decrypt encrypted data.

We also require you to provide reasonable facilities, which may include:

• adequate lighting, heating and air conditioning consistent with other areas of the premises
• a workspace appropriate to the circumstances
• photocopying facilities – although we may bring scanners or portable photocopiers
• computer facilities, such as keyboards, display units, instruction manuals and printers (if no hard copies are supplied).

It is an offence under the access provisions not to provide reasonable facilities and assistance to us. In more serious matters, such as hindrance or obstruction, we may decide to prosecute those who do not allow us access.

Copying and removing information

We can seek a wide range of information, but we usually only access information required for a particular enquiry. Wide-ranging searches are generally not conducted without a specific purpose.

Our access powers extend to all books, documents, goods and other property – whether or not they are found in a building or other place. The right of access applies to both paper records, such as entries in a diary or notebook, and information stored electronically.

Examples of information stored electronically include files stored on a computer, server, external hard drive, thumb drive, mobile phone or camera. We explain our approach to gathering electronic information under Gathering electronic information.

Under our access powers we have the right to make copies of, or take extracts from, any documents for any of the purposes of the respective laws we administer. This may include unopened mail that we find at your premises. However, we are not authorised to copy material that is not relevant to our purpose under the law, or seize or remove documents or books from your premises without your consent.

We are also able to inspect, examine, count, measure, weigh, gauge, take samples and test or analyse any goods or other property.

We use a range of techniques to make copies and take extracts – these include photocopies, photographs, videorecording or scans. Machine-readable disks, hard copy or tapes may be used to copy information stored on your computer.

We may take photographs or a videorecording of premises, a production process or articles in safe deposit boxes. We will only take photographs and make video recordings for the purpose of a relevant law and in accordance with privacy laws.

Record of removal

Whenever possible, we will copy documents (or other records) at your premises or the place we access. We may bring a photocopier or scanner to make these copies. If a scanner is used, we will usually provide you with a copy of the scanned material if you request it.

We do not have the right to seize your documents. We may seek your permission to take your records back to our office for examination and copying.

If you allow us to remove records, we will:

• usually make a record of that conversation and/or execute a written agreement with you – a copy of the record or agreement will be provided to you
• issue you with a receipt which describes the documents in as much detail as is practicable
• generally ask you to sign an authority stating that you have voluntarily authorised the removal of the documents
• deliver the records to you if you ask for their return.

If you do not permit us to remove the documents from your premises and it is not practical for us to copy them, we may issue a formal notice requiring production of the documents.

Records held by third parties

We are empowered to access records held by third parties, including lawyers, accountants, tax agents, employers, suppliers and banks. We seek to work cooperatively with these third parties and explain the purpose of our enquiries where possible – subject to privacy and secrecy considerations.

We will generally contact you before we seek access to third-party documents or information. However, there are some situations when we may not contact you beforehand, including when:

• we are collecting information about a large number of taxpayers in similar circumstances
• we are collecting information to help decide which individuals or businesses to audit
• we are making enquiries under an international tax treaty
• we are collecting information relating to enquiries, reviews or investigations under the promoter penalty laws
• transfer pricing audits are involved
• we decide access without notice is appropriate
• we have asked you for the information, but it has not been given to us
• there is a potential risk to the safety of our officers
• the matter relates to refund integrity
• you cannot be contacted
• it is otherwise impossible, impracticable or inappropriate to contact you.

When we visit third-party premises, we usually seek agreement on how we will:

• access documents stored on a computer
• inspect documents subject to claims of legal professional privilege, the accountants' concession or the corporate board advice concession.

If we do not know the specific document or information we require, we will look to minimise the volume of data accessed and the costs involved – for example, an IT employee of the third party may work with us to assist our access.

 

Interviews during access

During an access visit, we may ask you questions which are incidental to the conduct of our access – for example, questions about the location of records and how we can obtain them. You are required to answer these questions, but we cannot insist on answers to other questions that are unrelated to our access.

In practice, many interviews proceed on a cooperative basis without us needing to use our formal powers. We can only ask you questions that go beyond our access visit if:

• we have advised you that there is no compulsion to answer
• you agree to answer the questions.

Our questioning must be undertaken in good faith and for the purposes of the law we are administering. We will not persist if you object.

If we have reasonable grounds to seek further information and you are unwilling to supply it on a cooperative basis, we may consider using our formal powers to obtain it.

Costs of access

We will usually provide you with an opportunity to discuss the scope of our access visit, the timeframes and any difficulties likely to be encountered. We will consider ways of reducing your costs of providing reasonable facilities and assistance to us – for example, we may ask to use a photocopier when it is not being operated by your staff, or may supply our own paper to make copies.

We may seek access to documents or information for a category of persons (rather than an individual taxpayer) if we are likely to obtain a result from these enquiries. Before making a request about large numbers of taxpayers, we may take samples of your information to determine if obtaining bulk data will be effective.

When seeking access, we are not liable for any fee or charge and will not agree to pay any such fee or charge as a condition of using our access powers. We will consider who should bear the costs incurred in producing the information we request, although in most cases this will be you. You may be able to claim a tax deduction for costs incurred in complying with our access request.

Access without notice

In most cases, we will inform you if we intend to visit your premises to access your documents or information. However, in exceptional circumstances we do not give notice, including when we:

• suspect tax evasion, fraud, secrecy or concealment
• have a reasonable belief that documents may be disposed of, altered or destroyed.

In these cases, we will have a reasonable belief that:

• a cooperative approach will not work
• relevant documents are held at the premises.

If you are not present at your premises, we will:

• try to contact you or your legal representative
• consider proceeding with the access and quarantining of documents if you or your representative cannot be contacted
• if necessary, allow you or your representative reasonable time to claim that our access to certain documents is restricted.

If access without notice is being conducted at a third party’s private premises, we will:

• contact the occupier or custodian of the records at those premises
• consider undertaking the access and quarantining documents if the occupier or custodian is not present or cannot be contacted
• if necessary, allow you or your representative reasonable time to claim that our access to certain documents is restricted.

We may postpone our examination for a reasonable amount of time to enable you to consult with your representative. Our decision whether or not to postpone will be guided by real or perceived risks to the integrity of the documents of interest. Any delay allowed would rarely be more than a few hours. If we decide not to postpone our access without notice, we may attempt to reach an agreement with you about a suitable process to continue with our access.

If you are the occupier of the premises we are accessing, we will provide you with:

• a copy of the approval to take access without notice
• a copy of the statutory provisions relevant to our access
• information setting out your rights and obligations in relation to the access
• reasonable time and opportunity to consult another person – for example, a legal adviser.

Only designated senior officers can approve an access without notice.

An explanation of how our access to documents may be restricted is provided under Limits to our formal powers.

Recording an access without notice

We may ask to make an audio recording of an access without notice, or some parts of the access. We will usually explain why we wish to make the recording and provide you with the opportunity to refuse consent, but may continue to record without it.

If you provide consent, our recording usually includes:

• our explanation of your rights and obligations in relation to the access visit
• your questions and our responses to them.

We will provide you with a copy of our recording, generally within seven calendar days of the conclusion of the access without notice.

Access without notice – law and accounting firms

We can access the premises of a law or accounting firm without notice. Before doing so, we undertake a risk assessment to decide whether it is appropriate to notify the firm of our intended visit (though not of the name of any taxpayers of interest). A designated senior officer needs to approve this assessment before we seek access.

If we decide to give notification, we attempt to notify the principal or the managing partner of the firm or, if they are not available, another partner or senior employee.

We generally:

• advise of the number of our officers who will be attending the firm
• advise of our points of contact
• provide as much additional information about our visit as practicable – but the names of taxpayers of interest will not be disclosed
• ask for the primary contact (and alternative contact) details for the visit.

If we give notification of our visit, it will usually be at least one business day before the access visit. In exceptional circumstances, we may require urgent access and will give as much advance notification as is practicable.

We expect to work with the primary contact person, and generally require them to:

• meet us at the specified date and time or, if unavailable, ensure that a suitable person is available to meet and is appropriately briefed
• brief other senior persons within the firm who need to be informed
• organise the facilities required for the access visit, including a suitable meeting room and access to a photocopier
• advise where files may be located at an offsite archive facility, and put the facility area on standby
• arrange for legal and other advisers to be available to make and resolve any claim that the documents are protected by legal professional privilege, the accountants' concession or the corporate board advice concession
• arrange for the availability of IT specialists to help us access electronic records.

Offsite archiving facilities

We may need to access files, documents and other information held by a law or accounting firm at an offsite storage or archiving facility. If so, we will generally consult with that firm’s nominated representative to minimise disruption at the facility.

We will work with the representative to develop a workable protocol to retrieve and review the files or documents we need. This approach may allow for:

• the management of claims for legal professional privilege, the accountants' concession and the corporate board advice concession
• early access to the files or documents for which no claims are made.

We will provide your nominated representative with a reasonable opportunity to review the files and documents we wish to access, and make claims to restrict access where appropriate.

Access and excise

Our access powers under some excise legislation differ in some respects from our powers under other tax and superannuation laws.

We have broad powers of access in relation to excisable goods – these include petroleum and other fuel products, alcoholic beverages and tobacco. The powers may be used to ensure that unlawful goods and those involved in their unlawful manufacture and distribution of them are dealt with according to the law.

Our excise access powers allow us to stop vehicles and seize goods. We may open packages and examine, weigh, mark and seal goods, and take samples and dispose of them in certain situations. We are empowered to detain and search when we have reasonable cause to suspect that someone is unlawfully carrying goods.

Obstructing our access

Our right of full and free access allows us to take whatever steps are appropriate to remove a physical obstruction to our access, provided that those steps are not excessive. We remove obstructions to gain access only in rare circumstances. If obstructed or hindered, we may either:

• remove the obstruction
• seek an injunction if we are concerned that the documents could be lost, tampered with or destroyed
• take prosecution action.

We will usually give you adequate time if you wish to obtain advice. In these circumstances, we may need to remain on your premises to ensure that the records of interest are not removed, altered or destroyed.

If your adviser is not available, where possible we will make arrangements with you to secure the documents and inspect them as soon as possible after you have obtained advice, preferably on that same day.

We may arrange to secure the records if a longer delay is agreed to or we have reasonable belief that the documents of interest will be removed, altered or destroyed. We may do this by placing them in a sealed envelope or sealing the storage device they are contained in for the duration of the delay.

Forced access

In exceptional circumstances, and with the approval of a senior officer, we may need to use force to gain access to places or premises.

If domestic premises are unattended, we:

• will make a reasonable attempt to locate the occupier to facilitate our access
• will generally not remove obstructions
• will ordinarily only access the 'business type' areas of the premises
• may ask the relevant state or territory police to ensure the premises are unoccupied and there are no hazardous materials at the premises before we enter.

Before undertaking forced access, we will consider:

• the importance of the material which we plan to access
• the risk that the material may be destroyed, altered or removed
• the degree of force necessary to gain access, and the extent and cost of damage likely to result
• whether the material could be obtained by other means, such as use of our formal notice powers
• whether all reasonable alternative means of obtaining access have been exhausted
• if Australian Federal Police assistance by way of a search warrant is needed in cases where serious offences appear to have been committed
• the potential for harm to our officers
• the reason for the denial of assistance
• the urgency of the matter.

We prefer to use a master key or engage the services of a locksmith rather than break a lock. Where practicable, we will discuss our intended method of gaining access with you beforehand.

Locked storage facilities

If we require access to your locked storage facility, we will give you an opportunity to open the facility before we use force. If force is warranted, we will first consider alternative ways to open the facility, including:

• searching for a key
• engaging a locksmith to open the lock
• breaking open the locked facility (with permission from a senior officer).

Although we will use the minimum force needed to open the facility, damage may result in some cases. We may not be liable for damage if you have the means to open the facility and were given reasonable opportunity to do so. If we damage a locked facility and the occupier had not denied our request to unlock it, we will arrange for its repair.

If you wish to claim that documents contained in the facility are covered by legal professional privilege, the accountants' concession or the corporate board advice concession, we will allow you a reasonable amount of time to make that claim. In these cases, we will generally remain on your premises and continue to seek access to the remaining documents.

Search warrants

In cases where we suspect a criminal breach – for example, a serious offence or fraud, we may request the Australian Federal Police to execute a search warrant. Under a search warrant, the original documentation is seized and removed from your premises – only documents described in the warrant can be seized.

The alleged or suspected offences which may cause us to seek a search warrant include:

• offences against the Crimes (Taxation Offences) Act 1980
• major fraud or conspiracies to defraud the Commonwealth in respect of tax revenue – for example, under the Criminal Code Act 1995
• serious breaches, such as fraudulent record keeping under section 8T of the TAA or identity fraud under section 8U of the TAA.