Case Citation: F and G v Taxation Accountant [2006] PrivCmrA 6

Subject Heading: Improper disclosure of individuals' Tax File Number information.

Law: Sections 17, 18 and 49 of the Privacy Act 1988 (Cth), Tax File Number Guidelines 1992

Facts: The complainants employed a taxation accountant to prepare their Income Tax returns but were dissatisfied with the work done. They asked that their group certificates be returned and also refused to pay for the services rendered.

The taxation accountant attempted to collect the account and then referred the matter, including the group certificates, to a debt collector. When this action failed, the taxation accountant arranged for the debt collector to send the group certificates to a solicitor who was also employed to follow up the account.

Issues: Section 49 of the Privacy Act provides that if in the course of an investigation the Commissioner forms the view that a Tax File Number or Credit Reporting offence may have been committed the Commissioner shall discontinue the investigation and refer the matter to the Australian Federal Police or the Director of Public Prosecutions.1 Given the circumstances of the complaint, the Commissioner needed to consider if the disclosures of Tax File Number information constituted a possible Tax File Number offence.

Section 17 of the Privacy Act provides that the Privacy Commissioner shall issue guidelines concerning the proper handling of Tax File Number information. Paragraph 2.4 of the Tax File Number Guidelines require that Tax File Number recipients only use or disclose Tax File Number information as authorised by taxation, assistance agency or superannuation law.

The disclosure of the complainant's group certificates containing their Tax File Numbers to a debt collector and solicitor by the taxation accountant did not appear to be a disclosure authorised by taxation, assistance agency or superannuation law.

Outcome: In the course of the investigation, the Commissioner formed the view that the disclosures may constitute an offence in terms of the Taxation Administration Act 1953. The Commissioner advised the parties of this and referred the matter to the Commissioner of Police. The investigation was then discontinued but recommenced on advice from the Australian Federal Police that it would not investigate the matter in view of the nature of the alleged offence and its general impact.

After investigating the matter the Commissioner's view was that the disclosure of the complainants' Tax File Numbers to a debt collector and solicitor for the purpose of pursuing a debt was inconsistent with the Tax File Number Guidelines.

The complainants sought an apology and compensation for costs associated with obtaining new group certificates. The taxation accountant agreed to these requests and the Commissioner discontinued the investigation under section 41(2)(a) of the Privacy Act, on the grounds that the taxation accountant had adequately dealt with the matter.

OFFICE OF THE PRIVACY COMMISSIONER April 2006

1. A Tax File Number offence means an offence against section 8WA or 8WB of the Taxation Administration Act 1953 or section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code.