It is an offence for the Australian Taxation Office (ATO) to disclose “protected information” to another entity unless the disclosure is permitted under one of the exceptions in Division 355 of the Taxation Administration Act 1953. This article explores the ATO’s policies and procedures for disclosing protected information.
What is ‘protected information’?
Protected information refers to information that was disclosed or obtained under or for the purposes of a taxation law, which relates to the affairs of an entity and which identifies, or is reasonably capable of being used to identify, that entity.
An entity could be an individual, a body corporate, a body politic, a partnership, any other unincorporated association or body of persons, a trust, a superannuation fund, or an approved deposit fund.
When can the ATO disclose protected information?
Section 355-70 of Division 355 permits a tax officer to disclose protected information:
- To an authorised law enforcement agency officer, or a court or a tribunal, for the purpose of investigating a serious offence, or enforcing a law, the contravention of which is a serious offence.
- To an authorised ASIO officer, for the purpose of performing ASIO’s functions under the Australian Security Intelligence Organisation Act 1979.
- To a taskforce officer of a prescribed taskforce, or a court or tribunal, for or in connection with a purpose of the prescribed taskforce.
- To a Royal Commission, for the purpose of the Royal Commission conducting its inquiry.
The process tax officers must follow
Before disclosing protected information for law enforcement and related purposes, a tax officer must:
- Consult the Information Disclosure Team and have the disclosure approved by the Team.
- Ensure that they are authorised to make the disclosure. A tax officer other than the Commissioner or Second Commissioner can only disclose protected information if they have been delegated to do so by the Commissioner, or if they have been authorised to do so by the Commissioner or one of the Commissioner’s delegates.
- Determine whether one of the table items in section 355–70 will apply to the proposed disclosure:
- Is the proposed recipient of the protected information an entity described in column 2 of the table?
- Does the purpose for which the information would be disclosed fit the lawful purpose for disclosure set out in column 3 of the table?
- Comply with any Memorandum of Understanding (MOU) that applies to the proposed disclosure. An MOU cannot permit the sharing of protected information in violation of tax law secrecy rules. However, it can establish agreed-upon conditions for sharing information, including response timeframes for requests and designated agency contacts for directing requests and disclosures.
- Obtain senior officer agreement that the disclosure of protected information is covered by the table item in section 355-70.
Key takeaways
The ATO may not disclose protected information to another entity unless the disclosure is permitted under the Taxation Administration Act 1953. Before disclosing protected information, for example to facilitate the investigation of a serious offence, a tax officer must follow certain steps to ensure that they have the necessary authorisation and approvals to make the disclosure, and that the disclosure is compliant with the relevant provisions of the Act.
