Commentary on Section 264 of ITAA 1936: commissioner may require information and evidence

Dabner, Justin (2007) Commentary on Section 264 of ITAA 1936: commissioner may require information and evidence. In: Murray-Jones, Ian, (ed.) Australian Tax Practice. Thomson Legal and Regulatory, Pyrmont, NSW, Australia, - .

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[Extract] Section 264 is one of a raft of provisions at the disposal of the Tax Office authorising it to require persons to furnish information and evidence to it. It sits alongside s 263, which is the primary provision authorising the Tax Office to have access to buildings and documents and to make copies: see [263.10]. Section 264 complements this power by requiring any person to whom a notice is issued to furnish information, to attend and give evidence and/or produce documents. It is, however, an independent power and not dependent on the Tax Office first seeking to exercise its powers under s 263. It further complements s 162, which authorises the Tax Office to require a person to lodge a tax return or furnish further information about their financial affairs. Section 264 can, however, be directed to persons other than the taxpayer whose affairs are at issue.

This power is not without its limitations and is reviewable under the Administrative Decisions (Judicial Review) Act 1977. In particular, it must be appropriately authorised, exercised by notice in writing and contain sufficient particularity: see [264.100]. It must be exercised bona fide and solely for the purposes of the Act: see [264.420]. Furthermore, notices issued under s 264(1)(b) must be issued for the purposes of identifying a person's income or income-tax assessment: see [264.620]. The exercise of the power is not subject to any privilege against incrimination, but it is subject to legal professional privilege: see [264.820].

It should be an acknowledged that the policy of the Tax Office is to only use the power under s 264 as a last resort as requests for information will, initially at least, be typically made on a less formal basis. As it is no defence to an addressee to argue an obligation of confidentiality, persons concerned about breaching any obligation of confidentiality by supplying information to the Tax Office should request that a s 264 notice be issued to them.

It should also be noted that, under s 353-10 of the Taxation Administration Act 1953 (TAA), the Tax Office has similar powers to those contained in ss 263 and 264 of ITAA 1936. While s 353-10 is the primary provision utilised by the Tax Office to acquire information in relation to a goods and services tax assessment, it is also relevant to the administration of the TAA (including the collection of income tax). In fact, it is the preferred information gathering power of the Tax Office for use in debt collection work. Section 264 is considered by the Tax Office as more suitable to lodgement activities – although if the Tax Office wishes to acquire books or documents then this can also be achieved pursuant a search warrant obtained by the Australian Federal Police under the Crimes Act 1914 (Cth) (or by the Australian Crime Commission under the Australian Crime Commission Act 2002).

A failure to comply with a s 264 notice would amount to an offence under either s 8C or 8D of TAA, with the quantum of the penalties applicable dealt with in Taxation Administration Act 1953s 8E: see [264.860].

Item ID: 3014
Item Type: Book Chapter (Research - B1)
ISBN: 978-0-86460-011-0
Keywords: taxation, taxation law, Income Tax Assessment Act 1936
Date Deposited: 17 Dec 2009 03:01
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180125 Taxation Law @ 100%
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