Information gathering by the Commissioner : does it matter whether your advisor is a lawyer or accountant? : the impact of the White Industries case

There is no doubt that the Federal Commissioner of Taxation has extensive and powerful access and information gathering powers. Sections 263 and 264 of the Income Tax Assessment Act 1936 (‘ITAA 36’) provide for the Commissioner to seek access to buildings and documentation of taxpayers and their advisors for the purposes of the Act. The High Court decision in the Daniels v ACCC (‘Daniels’) corporation case1 established that legal professional privilege does apply in relation to investigations under the Trade Practices Act 1974. Although there is no direct High Court decision in relation to sections 263 and 264 of the ITAA 36, it would seem that these legislative provisions are also subject to the doctrine of legal professional privilege. This means that it would appear that sections 263 and 264 of the ITAA 36 do not abrogate the right to make a claim that legal professional privilege applies to documents that are being sought by the Australian Taxation Office (ATO).