Can you keep a secret? The obligation of secrecy and right to disclose taxpayers' information

Abstract

The secrecy of taxpayer information is a vital component of the tax system in both Australia and New Zealand. Strict limits on the use of information are contained in tax legislation and harsh penalties are imposed for breaches of secrecy. However, the statutory restrictions are subject to a wide exception permitting disclosure of information for the purpose of carrying out the Commissioners lawful duties. In a recent judgment, the New Zealand Supreme Court upheld the Commissioner's use of confidential information belonging to other taxpayers in litigation to defend an assessment, effectively overriding the secrecy of those other taxpayers. At the same time, courts in both Australia and New Zealand have consistently restricted taxpayers'access to confidential information about other taxpayers on the grounds of secrecy. The secrecy provisions and the right to disclose confidential information have therefore potentially become a tactical weapon for the Commissioner against which taxpayers have little defence.