Case Citation:

S v Accounting Firm [2007] PrivCmrA 21

Subject Heading:

Improper disclosure of Tax File Numbers

Law:

Tax File Number provisions of the Privacy Act 1988 (Cth)

Facts:

The complainants had an income tax return prepared by an accounting firm. They did not pay the accounting firm for their services, and so the accounting firm passed on the complainants'' group certificates and tax returns, including their Tax File Numbers, to a debt collection firm and advised the complainants they could have the tax returns and group certificates returned upon payment of the moneys owed.

The accounting firm also provided the complainants'' Tax File Numbers to a law firm for the purpose of possible litigation against the complainants.

Issues:

Section 49(1) of the Privacy Act obliges the Privacy Commissioner to refer matters involving possible Tax File Number offences to the Commissioner of Police or the Director of Prosecutions if the Commissioner forms the opinion that a Tax File Number offence or a credit reporting offence may have been committed.

Section 49(3) provides that the Commissioner may subsequently continue the investigation to the extent that it concerns matters unconnected with the offence that the Commissioner believes may have been committed.

Section 13(b) provides that an act or practice is an interference with the privacy of an individual if the act or practice engaged in by a Tax File Number recipient breaches the Commissioner''s guidelines in relation to Tax File Number information that relates to the individual.

Paragraph 2.4 of the Commissioner''s Tax File Number Guidelines 1992 provides that Tax File Number information shall only be used or disclosed by Tax File Number recipients as authorised by taxation, assistance agency or superannuation law.

Outcome:

The Commissioner referred the matter to the Australian Federal Police under section 49(1) of the Privacy Act. The Australian Federal Police subsequently advised that it would not be investigating this matter.

The Commissioner subsequently investigated the matter under section 40(1) of the Privacy Act.

The Commissioner noted section 11 of the Privacy Act provides that a person who is (whether lawfully or unlawfully) in possession of a record that contains Tax File Number information is to be regarded as a file number recipient.

The Commissioner considered that the debt collection firm and the legal firm were recipients of the complainants'' Tax File Numbers.

The Commissioner considered that the accounting firm disclosed the complainants'' Tax File Numbers to the debt collection firm and the legal firm in a manner not authorised under taxation, assistance agency or superannuation law. The Commissioner therefore found that the accounting firm breached paragraph 2.4 of the Tax File Number Guidelines 1992.

The accounting firm offered the complainants compensation for the interference with their privacy. Both the law firm and the debt collection firm advised that they had destroyed the Tax File Number information from their records.

Satisfied that the accounting firm had responded adequately to the complaint, the Commissioner closed the matter under section 41(2)(a) of the Privacy Act.

OFFICE OF THE PRIVACY COMMISSIONER August 2007