Commentary on Section 263 of ITAA 1936: access to book etc

Dabner, Justin (2007) Commentary on Section 263 of ITAA 1936: access to book etc. In: Murray-Jones, Ian, (ed.) Australian Tax Practice. Thomson Legal and Regulatory, Pyrmont, NSW, Australia, - .

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Abstract

[Extract] Section 263 of ITAA 1936 is one of a raft of provisions available to the Tax Office empowering it to access buildings and documents. The access powers under s 263 are restricted to access for the purposes of the income tax legislation. Other statutes administered by the Tax Office contain their own specific access powers. Under s 263, an authorised officer has full and free access to all buildings and documents and may make copies of (but not seize) documents: see [263.140]. Furthermore, the occupier of any building proposed to be entered must provide reasonable facilities and assistance: see [263.180]. Notably though, the section imposes no other positive obligations upon an occupier or custodian, particularly there is no obligation to answer questions concerning the affairs of any taxpayer. The occupier or custodian has the right to request the officer to produce a written authorisation before the access can occur: see [263.120].

This power complements that in s 264 which authorises the Commissioner to require persons to furnish information or attend and give evidence and/or produce books or documents if necessary: see [264.10]. Neither power is dependent on the other, but it is the policy of the Tax Office to first make informal requests for information and/or documents before exercising either power unless exceptional circumstances exist. Furthermore, the Tax Office will typically liaise with the occupant or custodian as to a convenient time to seek access and will generally seek to access information from taxpayers being investigated before seeking the information from third parties. Persons concerned about breaching any obligation of confidentiality by supplying information to the Tax Office should request that there be either a formal request for access under s 263 or that a s 264 notice be issued to them. The powers granted by s 263 are broad but are not without their limitations and are reviewable under the Administrative Decisions (Judicial Review) Act 1977. In particular, an officer exercising the power must be appropriately authorised: see [263.120]. The power must be exercised bona fide and solely for the purposes of the income tax legislation: see [263.100]. While it is not subject to any privilege against incrimination (see [263.820]) or any duty of confidentiality, such power is subject to public interest immunity (see [263.820]) and to legal professional privilege (see [263.300]). Where existing litigation has commenced, the Tax Office must use caution in exercising s 263 at the risk of committing a contempt of court: see [263.880].

Failure to comply with the provision will amount to obstruction under s 149 of the Criminal Code (Cth) with a possible penalty of imprisonment for up to 2 years: see [263.820].

Suggested steps to adopt for an occupier or custodian who is subject to the exercise by the Tax Office of the powers in s 263 are set out at [263.800].

Item ID: 3013
Item Type: Book Chapter (Research - B1)
Keywords: taxation, taxation law, Income Tax Assessment Act 1936
ISBN: 978-0-86460-011-0
Date Deposited: 17 Dec 2009 03:04
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180125 Taxation Law @ 100%
SEO Codes: 97 EXPANDING KNOWLEDGE @ 100%
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