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Tax Secrecy and Tax Transparency

The Relevance of Confidentiality in Tax Law- Part 1 and 2

Edited By Eleonor Kristofferson, Michael Lang, Pasquale Pistone, Josef Schuch, Claus Staringer and Alfred Storck

The issue of tax secrecy and tax transparency plays a significant role not only in academics, but also in general practice. The collection and treatment of information by tax authorities has been a highly discussed issue in recent years, both in the ambit of national legal communities and supra-national organizations, such as the OECD and the EU. The aim of this book is to analyze the approaches taken by different countries to confidentiality arrangements in tax law. This book now allows the reader to get an overview of the tax treatment in 37 countries.

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0. 72 Kathrin Bain tions to the duty: “(a) where the disclosure is under a compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer”.60 One Australian academic has stated: “Indeed, so many Australian statutes require disclosure of information that the bank's duty of confidentiality has now been seriously eroded”.61 In relation to taxation, the access powers of the ATO under ss 263 and 264 of the ITAA36 described above in Section 2(a) apply to financial institutions. For example, in Smorgon & Ors v FCT & Ors,62 it was held that a bank can be required under a s 264(1)(b) notice to produce documents contained in a safe deposit box. The statutory requirement overrode any contractual duty owed by the bank to the customer. Even without a specific request for information, banks are required to provide certain information to the ATO on a regular basis.63 The ATO also obtains infor- mation from banks under data-matching programmes, as discussed in Section 2(a). A recent example is the ‘Credit and Debit Card Data Matching Program’, under which the ATO requested data relating to credit and debit card sales of various enti- ties from ten financial institutions.64 The biggest change in regards to bank secrecy in recent times was the introduc- tion of the Anti-money Laundering and Counter Terrorism Financing...

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