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In a media release issued on 15 February 2010, the Commonwealth and Taxation Ombudsman, Professor John McMillan, confirmed that the ATO had established appropriate procedures for exercising its coercive "access without notice" powers under s 263 ITAA 1936. His confirmation came with the publication of his report entitled " Australian Taxation Office: Use of access without notice powers".

"This is the second Ombudsman investigation into the ATO’s access without notice powers in the past 10 years and it confirms that taxpayers can feel confident that the ATO is exercising these powers in the manner in which it should," Professor McMillan said.

Professor McMillan said it was right and proper that the ATO used its access without notice powers only in exceptional circumstances, defined by a genuine belief that documents might be destroyed if notice was given, a well–founded concern that fraud or evasion was occurring, or inappropriate secrecy by the taxpayer.

However, he suggested - and the ATO agreed - that the ATO’s commitment to public accountability would be strengthened by:

  • greater transparency through, for example, reporting use of the powers in its annual report
  • finetuning the Access and Information Gathering Manual, especially in relation to the ATO’s excisable goods regulatory role
  • improving the electronic case management filing system.


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