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NSW Court of Appeal confirms scope of secrecy provisions

The NSW Court of Appeal has allowed an appeal by the Commonwealth with the effect that its taxation officers are not required to disclose protected taxpayer information in response to a notice to produce. Luke Livingston SC and Shipra Chordia appeared for the Commonwealth in the successful appeal.

The issue arose in the context of proceedings brought by Kupang Resources Pty Ltd against the Commonwealth seeking to recover moneys paid by Mr Phillip Grimaldi to satisfy his taxation debts. Kupang had issued a notice to produce to the Commonwealth requiring production of “protected information” as defined in the Taxation Administration Act 1953 (Cth). The Commonwealth sought to have the notice set aside on the basis that compliance with it would have required its taxation officers to contravene statutory prohibitions.

The Court of Appeal (per Gleeson JA and Basten AJA, Macfarlan JA dissenting) held that, although in some cases a taxation officer will have the power to disclose protected information for the purpose of administering a taxation law, a third party may only obtain information by compulsion where disclosure is necessary for the purposes of carrying into effect the provisions of a taxation law or (in limited circumstances) the Foreign Acquisitions and Takeovers Act 1975 (Cth). Neither of those exceptions was engaged in this case.

The Court of Appeal set aside Kupang’s notice to produce. Judgment can be viewed here.

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