Case: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168
Outcome: cited
Part IVA confers powers on the Commissioner to form ' opinions ' concerning a 'scheme' (as defined) to reduce income tax which a taxpayer has entered into or carried out for the purpose of obtaining a tax benefit (s 177, particularly s 177D and 177F; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168) and a power to make determinations (s 177F) to include amounts in the assessable income of the taxpayer or disallow deductions, among other determinations. These expressly conferred powers (among other express powers) enable, properly exercised, the Commissioner to examine and investigate sources of information, facts, and circumstances that enable conclusions to be reached as to whether a taxpayer has complied with the tax law; whether the Commissioner's assessment of the tax payable by the taxpayer properly and accurately reflects the amount of the taxpayers liability to taxation under Part III of the ITAA 36; and whether a basis subsists for forming opinions, making determinations or exercising discretions as to any relevant matter for the purposes of the ITAA 36, the ITAA 97 or the TAA. 100 In addition to expressly conferred powers, the Commissioner is charged with the general administration of the tax law. Apart from s 8 of the ITAA 36, s 3A of the TAA confers the general administration of the TAA on the Commissioner. The Commissioner must each year provide a report to the Minister on the working of each Act (inclusively defined) s 14 ITAA 36; s 3B TAA. Each Act imposes general secrecy requirements upon ATO officers concerning information acquired by that officer or information obtained under the provisions of the legislation (for example, s 16(2) ITAA 36, subject to exclusions). One such exclusion is disclosure of information for the purposes of or in connection with the prosecution of a tax related offence against an Act administered by the Commissioner or an offence against the Crimes (Taxation Offences) Act 1980 (Cth) or the Crimes Act . 101 The secrecy provision in the TAA, subject to permitted disclosures, applies to an officer, who, by reason of employment, or in the exercise of powers or functions, acquires or obtains information for the purposes of the Act. The Commissioner's report to the Minister must set out in relation to each general category of offence, information disclosed to a defined 'law enforcement agency' including the Australian Crime Commission. Section 3D(1) of the TAA provides that 'notwithstanding anything in a taxation secrecy provision, the Commissioner may communicate information to the Chief Executive Officer of the ACC for the purposes of a tax-related investigation.' Similarly, the limitation contained in s 3D(11) of the TAA does not prevent disclosure of information in connection with the prosecution of a person for a taxation offence (s 3D(16)). Section 3E(1) of the TAA provides that the Commissioner may disclose information acquired by the Commissioner under a tax law, to an authorised law enforcement agency officer if the Commissioner is satisfied that the information is relevant to 'establishing whether a serious offence has been, or is being committed'. Nothing prohibits a law enforcement agency officer, put broadly, dealing with the information for the purpose of a possible prosecution of a person for a tax-related offence (s 3E(4)).