OS 13/01
Issued
26 Jul 2013

The Commissioner of Inland Revenue's search powers

OS 13/01 outlines how IR will exercise search powers under the Tax Administration Act 1994 and the Search and Surveillance Act 2012.

Use the links below to go directly to these sections in the document:

This statement also appears in Tax Information Bulletin Vol. 25, No. 8 (September 2013).

Introduction

  1. This statement outlines how Inland Revenue will exercise one of the Commissioner's information gathering powers: the search powers under sections 16, 16B and 16C of the Tax Administration Act 1994 and the Search and Surveillance Act 2012. The statement aims to provide taxpayers and their advisers with information about what to expect when the Commissioner uses these powers, and the Commissioner's expectations of taxpayers.
  2. This Operational Statement is supplemented by the Standard Practice Statement 10/02 Imaging of electronic storage media (or any subsequent replacements of this SPS) and is to be read in conjunction with that SPS.
  3. Legislative references within this Operational Statement are to the Tax Administration Act 1994 unless otherwise stated.

Application

  1. This Operational Statement applies from 1 September 2013.

Summary

  1. Under section 16 of the Tax Administration Act 1994 (TAA) and Part Four of the Search and Surveillance Act 2012 (SSA) the Commissioner, or any authorised Inland Revenue officer, has powers to fully and freely access places and documents for the purpose of inspecting any documents, property, process or matter which are considered necessary or relevant for the purpose of collecting any tax or carrying out any function lawfully conferred on the Commissioner.
  2. These powers are granted to the Commissioner to enable her to carry out her statutory duties. These duties include those set out in sections 6 and 6A, to protect the integrity of the tax system and to collect over time the highest net revenue practicable within the law, having regard to the Commissioner's resources, the importance of promoting compliance and the compliance costs incurred by taxpayers.
  3. Sections 16B and 16C support these powers of access by enabling the Commissioner to remove documents for copying and/or full and complete inspection.
  4. Section 16(1) is a warrantless power of entry. This means that, except for private dwellings, the Commissioner does not need to obtain a warrant to access all lands, buildings and places and to all documents.
  5. In order to access a private dwelling, the Commissioner must obtain either:
    (a) a warrant under section 16(4); or
    (b) the consent of an occupier.
  6. The Commissioner can remove documents, including electronically stored information, and retain them for copying or inspection or both. In order to remove documents from any place, for inspection, the Commissioner must obtain either:
    (a) a warrant under section 16C(2); or
    (b) the consent of an occupier.
  7. Warrants can only be obtained from District Court Judges, Judges of the High Court, or from other issuing officers that have been authorised by the Attorney-General (refer to the definition of "issuing officer" in the SSA and to section 108 of the SSA: other issuing officers can include Registrars, Deputy Registrars, Community Magistrates and Justices of the Peace when authorised by the Attorney-General).
  8. Information used for warrant applications will be confidential until, in most cases, the conclusion of the investigation and any litigation.
  9. Inland Revenue officers will apply best practice in using these search powers, including following these guidelines, to ensure compliance with sections 4, 5, 6, 21 and 22 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).
  10. The SSA provides a number of clarifications to the Commissioner's powers, as well as setting out requirements for Inland Revenue officers and taxpayers to follow. The SSA also sets out the process by which warrants are obtained.
  11. This Operational Statement (OS) provides taxpayers and their advisers with information about what to expect when the Commissioner exercises her search powers, including information on the protocols the Commissioner will follow in relation to legal privilege and the non-disclosure right under sections 20 and 20B to 20G of the TAA. This OS also provides information on the Commissioner's expectations of taxpayers and their advisers, and what the legislation requires them to do.
  12. The Commissioner's search powers will generally be exercised when, in the Commissioner's opinion, other means of obtaining information are inappropriate or inadequate. Other information gathering powers do not have to be used before the Commissioner exercises the section 16 search powers, but these search powers could be exercised in conjunction with those other information-gathering powers.
  13. Occupiers of places accessed by the Commissioner under section 16 are required by section 16(2) to assist the Commissioner by providing all reasonable facilities and assistance for the effective exercise of section 16, and to answer all proper questions relating to that exercise. Inland Revenue officers can use reasonable force, including the services of a locksmith, where necessary to open property, such as locked doors and cabinets.
  14. When documents are removed, owners will be provided with the opportunity to inspect and copy documents at the Inland Revenue office to which the documents are taken. And where practicable, Inland Revenue officers will follow a standard process in relation to the protections in section 20 (legal privilege) and sections 20B to 20G (non-disclosure right).
  15. Occupiers and other taxpayers who take steps to destroy documents or who fail to assist as required under section 16, or otherwise obstruct the Commissioner, could be liable to prosecution under the TAA and SSA. The penalties for such offences range from fines to sentences of imprisonment.
  16. The Commissioner considers the powers provided in sections 16, 16B and 16C to be essential to Inland Revenue's compliance functions and duties under the Revenue Acts. These powers will be exercised responsibly, preserving legal privilege and non-disclosure rights of taxpayers (and others), and in compliance with the New Zealand Bill of Rights Act where applicable.

Legislation

  1. The following legislative provisions are relevant to this OS:
    (a) Sections 6, 21, 22, 23 and 28 of the Bill of Rights Act.
    (b) Sections 16, 16B and 16C of the TAA.
    (c) Section 20 of the TAA (the legal privilege applying to information subject to the information-gathering powers in sections 16, 17, 17A, 18 and 19).
    (d) Sections 20B to 20G of the TAA (the non-disclosure right for tax advice documents subject to the information-gathering powers in sections 16, 17, 17A, 18 and 19).
    (e) Section 3, subparts 1, 3, 4, 7, 9 and 10 of Part 4 (except sections 102, 103(3)(b)(ii), 103(7), 115(1)(b), 118, 119 and 130(4)), and the Schedule of the SSA.
    (f) Section 60 of the Evidence Act 2006 (EA 2006).

Search and Surveillance Act 2012

  1. The SSA aims to ensure search and surveillance powers are exercised consistently and in ways which balance law enforcement priorities with civil rights.
  2. The powers in the TAA are supplemented by various provisions of the SSA. These include clarifications to the Commissioner's powers, requirements for Inland Revenue officers and taxpayers to follow, and the process by which warrants are obtained.
  3. Not all of the provisions in the SSA apply to the Commissioner. Refer to Appendix I for a table summarising the parts of the SSA that apply (including an explanation of how only those parts of the SSA that are listed in the SSA Schedule apply).
  4. The SSA takes effect on the TAA from the earlier of the date of effect given by any Order in Council for the application of the SSA to the TAA, or 1 April 2014.
  5. Refer to Appendix I for an explanation of how the SSA applies to the TAA.

Definitions

  1. The following terms are used in this OS:

Computer system

Section 3 of the SSA defines this as follows:

computer system
(a) means-

  1. a computer; or
  2. 2 or more interconnected computers;
  3. any communication links between computers or to remote terminals or another device; or
  4. 2 or more interconnected computers combined with any communication links between computers to remote terminals or any other device; and

(b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software or communication facilities, and stored data.

Document

Section 3 of the TAA defines this as follows:

"document" means-
(a) a thing that is used to hold, in or on the thing and in any form, items of information:
(b) an item of information held in or on a thing referred to in paragraph (a):
(c) a device associated with a thing referred to in paragraph (a) and required for the expression, in any form, of an item of information held in or on the thing

Enforcement officer

Section 3 of the SSA defines this as follows:

enforcement officer means-
(a) a constable; or
(b) any person authorised by an enactment specified in column 2 of the Schedule, or by any other enactment that expressly applies any provision in Part 4, to exercise a power of entry, search, inspection, examination, or seizure.

Inland Revenue officers to whom the Commissioner has delegated the authority to exercise section 16 fall within this definition of "enforcement officer."

Full and complete inspection

Section 3 of the TAA defines this as follows:

"full and complete inspection"-
(a) includes use as evidence in court proceedings:
(b) does not include removal to make copies under section 16B

Inland Revenue officer in charge

This term is not defined in the TAA. This is the Inland Revenue officer who has charge of the search. They will identify themselves to the occupier and will be the primary contact point for the occupier and their adviser. This means that all communication between the occupier and Inland Revenue officers will be made through the officer in charge. This person has delegated authority from the Commissioner to exercise sections 16, 16B and 16C of the TAA and the ancillary provisions of the SSA. They will hold a delegation of authority card which can be shown to occupiers and their advisers as confirmation of the delegation.

Necessary or relevant

This term is not defined in the TAA. It is what is necessary or relevant in the Commissioner's opinion that is pertinent. "Necessary or relevant" for the purposes of section 16 means that the documents are necessary or relevant for any of the following purposes:

  • Collecting any tax or duty under any of the Inland Revenue Acts;
  • Carrying out any other function lawfully conferred on the Commissioner;
  • Likely to provide any information required for the purposes of any of the Inland Revenue Acts or the Commissioner's functions.

Occupier

The term occupier is not defined in the TAA. For the purposes of sections 16 and 16C, the term is given a wide meaning. It includes all persons entitled to be on the premises, including employees, tenants and family members, and is not restricted to the owner or lease holder. This may or may not include the taxpayer under investigation. In this OS, the term "occupier" is used interchangeably with "taxpayer." The Inland Revenue officer in charge will take reasonable measures to satisfy themselves that the occupier they are dealing with has lawful occupation of the place and is the appropriate person to deal with, and may also require other occupiers to provide assistance or answer proper questions. See also paragraphs 53(a) and 112.

Private dwelling

Section 16(7) of the TAA defines this as follows:

  • "private dwelling" means any building or part of a building occupied as residential accommodation (including any garage, shed, and other building used in connection therewith); and includes any business premises that are or are within a private dwelling.

Proper questions

This term is not defined in the TAA. For the purposes of section 16(2)(b), proper questions are those relating to the effective exercise of powers under section 16. This does not include investigative questions, but can include dual purpose questions (where discussion about documents, property, processes or other matters contained on the premises can overlap with the substantive investigation). See paragraphs 78 to 94 below for a discussion of how these will be managed.

Reasonable facilities and assistance

This term is not defined in the TAA. For the purposes of section 16(2)(a), the provision of reasonable facilities and assistance means such assistance as the Inland Revenue officer in charge of the search considers necessary for the effective exercise of the search powers. This is reinforced by the SSA, and examples include unlocking cabinets, providing access to bathroom and kitchen facilities, the provision of electricity, and remaining outside specified areas when required to do so (see paragraphs 97 to 99 below).

Remote access search

Section 3 of the SSA defines this as follows:

  • remote access search means a search of a thing such as an Internet data storage facility that does not have a physical address that a person can enter and search

Search power

Section 3 of the SSA defines this as follows:

search power, in relation to any provision in this Act, means –
(a) every search warrant issued under this Act or an enactment set out in column 2 of the Schedule to which that provision is applied; and
(b) every power conferred under this Act or an enactment set out in column 2 of the Schedule to which that provision is applied, to enter and search, or enter and inspect or examine (without warrant) any place, vehicle, or other thing, or to search a person

The power in section 16, including the power to access private dwellings under warrant, is a search power for the purposes of the SSA.

Operational practice

Overview

  1. This section sets out the operational practice authorised Inland Revenue officers will follow when exercising search powers, the Commissioner's expectations of taxpayer and their advisers, and their statutory obligations.
  2. This section covers the following matters:
    1. When Inland Revenue will use section 16.
    2. Warrants.
    3. Entry, Identification and Advice of Rights.
    4. Exercising search powers (including taxpayers' obligations):
      1. Access;
      2. Search:
      3. Assistants;
      4. Reasonable facilities and assistance;
      5. Proper questions;
      6. Power to exclude;
      7. (vii) Other activities;
      8. Electronically stored information;
      9. Removal of documents.
    5. Legal advisers, tax agents and support persons.
    6. Legal privilege and the non-disclosure right.
    7. After the search:
      1. Access to documents;
      2. Return of documents.
    8. Offences.

When Inland Revenue will use section 16

  1. The efficient and effective use of information gathering powers such as those provided in sections 16, 16B and 16C are necessary for the Commissioner to obtain information to verify various tax liabilities, to deter and detect offending, and to assist in tax collection.
  2. The Commissioner will use section 16 where it is considered appropriate in the context of the particular investigation, and where it is reasonable. This includes cases where, in the Commissioner's opinion, there is a risk or history of non-compliance and/or a lack of co-operation, where it is likely that documents may be at risk, or likely that the case involves revenue offending (tax crimes, including fraud and evasion). Section 16 can also be used to address problems of aggressive tax planning and tax avoidance.
  3. It is not necessary for the Commissioner to use other avenues to obtain the information or other powers, such as section 17, before exercising section 16.
  4. The power under section 16B will be exercised in situations where it is considered reasonable to do so in order to prevent the Commissioner's investigations being hindered or where copying of the documents on the premises is not practicable.
  5. The powers under section 16C will be exercised when it is reasonable to do so to retain documents for full and complete inspection, including the use of those original documents in court proceedings.
  6. The Commissioner recognises the intrusive nature of the exercise of section 16, and the need to use section 16 in a way that recognises the importance of the rights and entitlements affirmed in other enactments, including the Bill of Rights Act, the Privacy Act 1993 and the Evidence Act 2006, while ensuring the effectiveness of the Commissioner's investigative tools. The Inland Revenue officer in charge will explain clearly to occupiers what their rights and obligations are (see paragraphs 49 and 57 to 59).

Warrants

  1. Section 16(1) is a warrantless power of entry. This means the Commissioner does not need to obtain a warrant to access all lands, buildings (except for private dwellings) and places, and all documents.
  2. In order to access a private dwelling, the Commissioner must obtain either:
    1. a warrant under section 16(4); or
    2. the consent of an occupier.
  3. It is the Commissioner's practice to apply for warrants in relation to accessing private dwellings. This provides occupiers with judicial oversight, helping balance their privacy rights against law enforcement needs. If part of a search area is found to contain a private dwelling, and if a private dwelling warrant is not already held, the officer in charge will seek either the occupier's consent, or a warrant before searching that area.
  4. The Commissioner can remove documents, including electronically stored information, and retain them for copying or inspection or both. In order to remove documents from any place, for inspection, the Commissioner must obtain either:
    1. a warrant under section 16C(2); or
    2. the consent of an occupier.
    • Note: The Commissioner does not require a warrant, or the consent of an occupier, to remove documents for copying (under section 16B). Copying of documents, including the imaging of electronically stored information, can occur either on-site or elsewhere.
  5. The Commissioner will obtain warrants under section 16C to remove and retain documents in most cases where section 16 is being used. Although section 16C states that documents can be removed and retained with the occupier's consent, the Commissioner will generally obtain warrants for the removal of documents under section 16C. In most cases, having a warrant to remove the documents will reduce the amount of time Inland Revenue staff will be present at taxpayers' premises and will provide a clearer framework for claiming and protecting legal privilege and the non-disclosure right.
  6. Subpart 3 of Part 4 of the SSA sets out the process by which warrants are to be obtained. One of those requirements is for the warrant application to contain a description of the items believed to be in the place, vehicle or other thing sought by the Commissioner (section 98(1)(e) of the SSA). Section 103(4)(g) of the SSA requires the warrant itself to contain a description of what may be seized. The Tax Administration (Form of Warrant) Regulations 2003 reflects this requirement, which satisfies the SSA requirements. A more detailed description of the documents to be seized is not required, and in addition, section 123 of the SSA allows Inland Revenue officers to seize other documents that are in plain view during the section 16 search. Section 123 authorises Inland Revenue officers to do this where they have reasonable grounds to believe they could have seized the items under a private dwelling search warrant, a section 16C(2) warrant, or under section 16(1).
  7. Where the Commissioner intends to use section 16 to inspect any property, process or matter (other than documents), then the requirements of sections 98(1) and 103(4)(g) of the SSA to describe the item to be seized do not apply. This is because the requirement to describe items to be seized cannot apply to items that are going to be inspected, not seized.
  8. These warrant applications are made without notice to the occupier, and can include confidential information. Where the relevant secrecy or confidentiality rules apply the Commissioner will generally seek to keep the information confidential. Other information may be disclosed either in whole or part at the conclusion of the investigation and any litigation resulting from that investigation. In some cases, this information may still be protected after the investigation or litigation has ended.
  9. While section 100(3) of the SSA provides for oral applications for warrants, the Commissioner will generally seek warrants by written application.

Entry, Identification and Advice of Rights

Entry

  1. Section 16(1) provides the Commissioner with wide powers of access to all lands, buildings and places, and documents. This includes motor vehicles, business premises, warehouses, and private dwellings under a court warrant. This is reflected in section 110 of the SSA.
  2. Inland Revenue officers exercising search or seizure powers are able to use reasonable force in respect of any property (for example, to open doors and access cabinets). This is specifically provided for in sections 110(c), 113(2)(b) and 131(3) of the SSA. Those powers do not authorise the use of force against persons.
  3. One example of reasonable force is the use of a locksmith to gain entry if no one is present or if the occupier refuses entry. The use of non-Inland Revenue personnel, such as locksmiths, is also authorised by provisions in the TAA and SSA which permit Inland Revenue officers to bring along such assistants as they consider necessary (see paragraphs 67 to 71 for further discussion). Where locksmiths or other means of reasonable force are used to gain entry, and new locks and/or keys are required, the Inland Revenue officer in charge will attempt to contact the property owner and provide them with the new keys.
  4. The Inland Revenue officer in charge will accompany all assistants when they first enter the place to be searched, and will supervise any assistant that is not an Inland Revenue employee or a Police constable as the Inland Revenue officer in charge considers reasonable in the circumstances.

Identification and notices

  1. When entering premises under section 16, the Inland Revenue officer in charge of the search will:
    1. (a) Announce their intention to enter under section 16.
    2. Identify him/herself by name or by unique identifier.
    3. Produce evidence of their identity.
    4. Provide the occupier with a copy of the search warrant, if any.
    5. Where the search is not being carried out under a warrant, provide the occupier with a written notice setting out:
      1. That the search is taking place under section 16; and
      2. The reason for the search. This will be in general terms describing the nature of the investigation, but not setting out specific detail. For searches being carried out under warrants, the reason for the search is set out in the warrant.
    6. Accompany any assistant that is not an Inland Revenue employee or a Police constable when that assistant first enters the place.
  2. The Inland Revenue officer in charge will also identify themself to the occupier as the main contact person for the occupier and their adviser during the search of the premises.
  3. If the occupier is not present during the search, the Inland Revenue officer in charge of the access will leave the following in a prominent position at the place (or in the vehicle):
    1. A copy of the search warrant (where the search was carried out under a search warrant);
    2. A notice setting out:
      1. The date and time of the start and finish of the search;
      2. The name or unique identifier of the Inland Revenue officer in charge of the search;
      3. Where the search was exercised without a warrant, that it took place under section 16, and the reason for the search;
      4. The address and contact details of the Inland Revenue officer to whom enquiries should be made;
      5. If nothing was seized, the fact that nothing was seized;
      6. If documents were seized, the fact that documents were seized;
      7. If documents were seized, and where an inventory is not provided at this time, a statement that an inventory will be provided within seven days after the seizure;
      8. If documents were seized, the information set out in paragraph 112 to the extent applicable.
  4. Where it is not reasonably practicable to take the steps set out in paragraph 49, section 131(4)(b) of the SSA enables the Commissioner to provide this information to the occupier or owner within seven days after the search.
  5. By taking the above steps, the Inland Revenue officer in charge of the search will have met the identification and notice requirements of sections 16(6) and 16C(4) and section 131 of the SSA. However, in the following circumstances, sections 131(1)(b)(ii), 131(2) and 131(6) of the SSA permit the Inland Revenue officer in charge to elect not to carry out some of these requirements:
    1. Where the Inland Revenue officer in charge has reasonable grounds to believe the person present during the search is not the occupier of the place or is not the person in charge of the vehicle or other thing being searched, the Inland Revenue officer in charge will not provide that occupier with the information in paragraphs 49 and 51;
    2. Where it is impracticable to do so, the Inland Revenue officer in charge can elect not to carry out paragraphs 49(d) and (e);
    3. Where there are operational reasons (such as safety or prejudice to the investigation or the access), the Inland Revenue officer in charge can elect not to carry out paragraph 49; and
    4. Where the Inland Revenue officer in charge has reasonable grounds to believe that no person is lawfully present, then they can elect not to carry out paragraph 49.
  6. In the following circumstances, section 134 of the SSA enables Inland Revenue to apply to a Judge for a postponement of the requirements in paragraph 51:
    1. Where compliance would endanger the safety of a person; or
    2. Where compliance would prejudice on-going investigations.
  7. Section 132 of the SSA sets out identification and notice requirements for remote access searches. In addition to remote access searching, the Commissioner is also able to access computer systems under section 16(1) because of the broad nature of the language used in that section.
  8. To ensure the Commissioner’s powers in this regard are exercised in a reasonable manner, and consistently with the Bill of Rights Act, the Inland Revenue officer in charge will, if possible, do the following upon completion of a computer system search:
    1. send an electronic message to the email address of the thing searched setting out:
      1. The date and time of the start and finish of the search;
      2. The name or unique identifier of the Inland revenue officer in charge of the search;
      3. The address of the Inland Revenue office to which inquiries should be made.
    2. Where it is not possible to deliver this electronic message, the Inland Revenue officer in charge will take reasonable steps to identify the user of the thing searched and send the above information to them.

Advice of rights

  1. The Commissioner's use of section 16 is subject to the reasonableness requirement of section 21 of the Bill of Rights Act.
  2. To ensure the search powers in the TAA and the SSA are exercised consistently with the protections in the Bill of Rights Act, the Inland Revenue officer in charge of the search will provide the occupier with the following:
    1. Advice of the occupier's ability to consult and instruct a lawyer.
    2. An explanation of the occupier's obligation to provide reasonable facilities and assistance and to answer proper questions.
    3. An explanation of the privilege against self-incrimination under section 60 of the Evidence Act, where proper questions are being asked that may also constitute investigative questions (refer to paragraphs 78 to 94 for more information on proper questions).
    4. A general explanation of the processes that will be undertaken on-site.
  3. The Inland Revenue officer in charge of the search will provide the occupier with a written copy of the above information.

Exercising search powers (including taxpayers' obligations)

Access

  1. Access will be undertaken at a time the Commissioner considers will balance causing minimal disruption to the occupier with the purpose of the search and the operational needs of the investigation.
  2. Where no-one is present at the premises being searched, Inland Revenue officers are able to use reasonable force to gain access.  This includes forced entry or engaging the services of a locksmith to enter the premises, and disarming alarms.

Search

  1. The power of access in section 16 includes the power to search for items covered by that section.
  2. Noting the restrictions set out in the SSA, the Commissioner's view is that officers are not empowered to directly search persons.However, occupiers are required to provide Inland Revenue staff with reasonable facilities and assistance in carrying out the search.This includes emptying their pockets if asked to do so, handing over documents and devices such as cellphones or USB drives, and allowing the Inland Revenue officer to search inside items such as handbags, briefcases and backpacks.
  3. Where Inland Revenue officers have reasonable grounds to believe that documents, including electronically stored information, are on an occupier's person, Inland Revenue officers may request the assistance of Police to search that person where the Police powers to do so apply.Where Police are called on to assist IR officers, any constable is able to exercise any power ordinarily exercisable by them (section 113(3) of the SSA).
  4. Any such search of a person will be conducted with decency and sensitivity and in a manner that affords to the person being searched, the degree of privacy and dignity that is consistent with achieving the purpose of the search (as set out in the SSA).
  5. The search may extend to any item the person is carrying or that is in the person's physical possession or immediate control (including briefcases, handbags and backpacks).

Assistants

  1. Section 16(2A) authorises Inland Revenue to bring such assistants as the Commissioner may consider necessary, and section 113(4) of the SSA sets out the Commissioner's obligations in relation to those assistants.Examples of assistants include other Inland Revenue staff, digital or other computer forensic experts, locksmiths, Police officers, dog control officers, interpreters, landlords and local council staff.
  2. Where an assistant is not an Inland Revenue employee or a Police constable, the Inland Revenue officer in charge will accompany that assistant when they first enter the place to be searched, and provide such supervision as is reasonably necessary.Where the assistant is a constable, section 113(5) of the SSA makes it clear that these requirements do not apply.
  3. Assistants have all of the powers given to them under section 113 of the SSA that the Inland Revenue officer in charge authorises them to use.This includes authorising an assistant to use reasonable measures to access computer systems, and authorising locksmiths to use reasonable force in respect of any property.
  4. Assistants can also be used where occupiers are obstructing entry or the search and seizure.Inland Revenue can call on the assistance of Police or other security specialists.
  5. Where the Commissioner has engaged the services of non-Inland Revenue staff to assist in the exercise of section 16, they will be required to have first signed a declaration of secrecy under section 87.

Reasonable facilities and assistance

  1. The Commissioner's search of premises requires some degree of assistance from those in normal possession of those premises, including unlocking doors and providing electricity.Section 16(2) requires occupiers to provide reasonable facilities and assistance to Inland Revenue officers.
  2. Refer to paragraph 58 for further information as to what occupiers will be told.
  3. The obligations to answer proper questions and provide assistance under section 16(2) do not amount to a detention within the meaning of section 23 of the Bill of Rights Act.However, occupiers will be treated with humanity and respect for the inherent dignity of the person, as set out in section 23(5) of the Bill of Rights Act.
  4. Where occupiers are required to provide assistance, they will be asked to do so at an early stage. Wherever possible, the Inland Revenue officer in charge will avoid keeping occupiers longer than is necessary for them to assist during the course of the search.
  5. When requiring assistance from occupiers, Inland Revenue will take into account the following factors:
    1. The compliance cost to the occupier;
    2. The need for occupiers to also meet the needs of their business during the search (where the search occurs during that business' working hours);and
    3. The purpose for which the search powers are being exercised.
  6. Where the occupier is required to provide assistance, the Inland Revenue officer in charge will inform them of the reason for this, and that they have the right to refrain from making any incriminating statement (unless it is a proper question within the parameters discussed in paragraphs 78 to 94).

Proper questions

  1. When the search power in section 16 is being exercised Inland Revenue staff are statutorily empowered under section 16(2)(b) to ask questions which occupiers must answer.
  2. The SSA also imposes additional obligations on occupiers to provide access or other information that is reasonable and necessary to allow Inland Revenue to access data in computer systems or other data storage devices or internet sites (section 130 of the SSA).
  3. The answers to questions asked under section 16(2)(b) can be required in writing or under statutory declaration. Generally, it is the Commissioner's practice to require oral answers to these questions during the search, although the occupier can be asked to provide answers in writing or under a statutory declaration.
  4. Any questions asked under section 16(2)(b) must be "proper" questions. Proper questions are those relating to the effective exercise of powers under section 16:
    1. This includes basic questions such as name, address and occupation.
    2. It does not include investigative questions, which are questions directed at obtaining evidence of offending or of the taking of the underlying tax position. Questions of this kind will be put to the occupier separately under a voluntary interview or an inquiry under sections 18 or 19.
  5. However, the Commissioner recognises that discussion about the material contained on the premises can overlap with the substantive investigation. So when asking questions of this dual nature, Inland Revenue officers will ensure occupiers understand that questions relating to investigative aspects form part of a voluntary interview and they may leave after the "proper question" has been answered (see the discussion at paragraphs 88 to 94 about the privilege against self-incrimination).
  6. If an interview is considered necessary, then this will generally be arranged for a date after the search has been completed. Ensuring that any investigative interview is conducted separately from the search will allow the taxpayer time to discuss their circumstances with an advisor and to appropriately obtain advice. Doing so may also allow time for the taxpayer to make a post-notification voluntary disclosure under section 141G(1)(b).
  1. This means that, unless the taxpayer has previously been advised of this, the exercise of section 16 will qualify as notification of a pending or started tax audit or investigation under section 141G(4). Any questions asked during the search under section 16(2)(b) will be confined as much as possible to "proper questions" so that the search does not constitute an interview for the purposes of section 141G(5)(a) or (b). Inland Revenue's view is that any dual purpose questions do not by themselves constitute an "interview" for the purposes of section 141G(5)(a) or (b), providing that the principal purpose of asking that dual purpose question is to ask a proper question.
  2. Although a search will qualify as notification (for the purposes of the voluntary disclosure regime), it will depend on the facts of each case as to whether or not the Commissioner has started the audit or investigation (per the criteria in section 141G). The Commissioner's view is that inspections conducted in the course of the search for the purposes of determining relevance will generally not trigger the criterion in section 141G(5)(b) (unless purely investigative questions arise during the search) .
  3. This means that generally a voluntary disclosure made following the exercise of section 16 (and until the conclusion of the first interview) will be a post-notification disclosure in terms of section 141G(3)(b). Where possible, the Inland Revenue officer in charge of the access will provide the occupier with a letter recording the notification of the start of an audit or investigation. Refer to SPS 09/02 Voluntary disclosures and SPS 07/02 Notification of a pending audit or investigation for more information. The forms for making voluntary disclosures can be found at www.ird.govt.nz (IR 281 Voluntary disclosure).
  4. If an occupier refuses to answer a proper question, or leaves without answering it, this could give rise to a prosecution for obstruction (see paragraphs 97 to 99).
  5. However, section 60 of the Evidence Act provides a privilege against self-incrimination where a natural person is required to provide specific information by a person exercising a statutory power or duty. This privilege is reflected in section 130(2) of the SSA, when a person is required to provide access or other information for computer systems.
  6. The privilege only relates to information that would be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment. It does not relate to liability for shortfall or other civil penalties under the TAA.
  7. Section 60(3) of the Evidence Act restricts this privilege when an enactment removes it either expressly or by necessary implication. Section 16(2)(b) does remove the privilege in relation to "proper questions."
  8. What this means in practice is that Inland Revenue officers may ask questions relevant to the inspection of documents, property, processes or matters and the occupier is compelled to answer them, but these questions will not extend to investigative ones. This practice applies to sections 6 and 28 of the Bill of Rights Act, by giving section 16(2) a meaning consistent with the rights and freedoms in that Act and with the common law right to silence.
  9. Where such questions fall into both categories (dual purpose questions), the Inland Revenue officer will explain that the occupier has a right under section 60 of the Evidence Act not to answer the question if it would be likely to incriminate them. The privilege only relates to information asked of the person; it does not extend to documents. Providing passwords and other computer system and internet access information is not information that is likely to incriminate a person.
  10. Where occupiers are required to answer proper questions, they will be asked to do so during the course of the search, and the Inland Revenue officer in charge will inform them of the reason for this, and that they have the right to refrain from making any statement that may incriminate them.
  11. If an occupier is unsure as to which questions are proper, having a professional tax adviser or lawyer present can assist. However, Inland Revenue does not consider that it is necessary to await the arrival of any adviser before asking any proper question.

Power to exclude

  1. Under section 116 of the SSA, the Inland Revenue officer in charge can secure the place or thing being searched, and where the officer has reasonable grounds to believe any person will obstruct or hinder the search (or any other power being exercised during the search), can exclude any person from the place, vehicle or thing.
  2. In practice, this means that occupiers may be asked to remain outside a specified area, to keep away from other occupiers or Inland Revenue officers, or to leave the premises. Failing to do any of these things could result in the occupier being liable to prosecution for obstruction.

Obstruction and other offending

  1. Failing to keep away from other occupiers or Inland Revenue officers, or failing to remain outside an area specified by the officer in charge, may constitute an offence under section 143H (obstruction) leading to possible prosecution.
  2. Obstruction also includes failure to provide reasonable facilities and assistance, failure to answer proper questions, hiding or destroying documents (including electronically stored information).
  3. Such activities may also result in the taxpayer having to pay an increased shortfall penalty under section 141K.

Other Inland Revenue activities

  1. Inland Revenue officers may also do the following in the course of exercising the Commissioner's search powers under the TAA and SSA:
    1. Take photographs, sound, or video recordings.
    2. Record discussions with occupiers.
      Because these discussions are not an interview (refer to the discussion on "proper questions" at paragraphs 78 to 94), they are not subject to the guidelines in SPS 12/01 Tape recording Inland Revenue interviews; and where an interpreter is being used, the discussion will generally be audio-recorded as normal practice to provide an accurate record for both the occupier and the Commissioner. Where taxpayers are being interviewed, this will be conducted separately and is subject to the guidelines in that SPS.
    3. Question other occupiers who are present (for example, employees, tenants, family members, but not children under 14 years of age).
    4. Re-enter the premises after the search has been completed, but where this is a private dwelling, only if all items described in the warrant have not been seized or the search was completed within the last four hours or less.
  2. Inland Revenue officers will also take a record of any cash or other valuables found during the search. This includes counting and photographing the items, because such assets could be representative of undeclared income. The items will generally not be seized by Inland Revenue.

Electronically stored information

  1. Refer to the following Standard Practice Statements for information on:
    1. SPS 13/01 Retention of business records in electronic format, application to store records offshore, and application to keep records in Maori (or any subsequent replacement SPS) for guidelines on retaining business records in electronic format.
    2. SPS 10/02 Imaging of electronic storage media (or any subsequent replacement SPS) for Inland Revenue's practice when taking an image of electronic storage media.
  2. The SSA confirms the Commissioner's approach to imaging of electronically stored information as set out in SPS 10/02.
  3. Sections 110(h) and (i) and sections 113(h) and (i) of the SSA confirm, as did Avowal Administrative Attorneys Ltd & Ors v District Court at North Shore & Anor [2010] NZCA 183, that the Commissioner can access, preview and image (clone) electronically stored information. These sections specifically authorise the Commissioner to do the following:
    1. Use reasonable measures to access computer systems or other data storage devices, whether located in whole or in part at the place being searched;
    2. To copy any intangible material accessed, including previewing, cloning or other forensic methods;
    3. To copy material either before or after removal from the premises.
  4. In addition, section 130 of the SSA authorises the Commissioner to require a person with knowledge of a computer system to provide access information and other assistance that is reasonable and necessary to allow Inland Revenue to access data.
  5. Refer to the following paragraphs in this OS for discussion of these relevant aspects:
    1. Paragraphs 88 to 94 for a discussion of the privilege against self-incrimination.
    2. Paragraphs 112(d) and 127 to 139 for information on the privileges and confidentialities that apply.
    3. Paragraphs 55 to 56 above for an explanation of how the notice requirements in the SSA apply to Inland Revenue accessing electronically stored information.
  6. Inland Revenue's Digital Forensics Unit (DFU) is a unit of specialist computer forensic staff that is independent from the Investigations unit. Wherever possible, the Commissioner will use staff from DFU to carry out the access, searching and copying of electronically stored information.
  7. Examples of situations where it might not be possible to use DFU include where the size of the operation means there are not enough DFU staff to attend at every site, and the Commissioner could either contract in external specialists, or require Investigations staff to remove electronic storage devices and deliver them to DFU for imaging. In all of these cases, a clear chain of custody over the electronic storage device will be maintained, and claims of legal privilege and the non-disclosure right (under sections 20 and 20B to 20G) can be made as described in this OS (see paragraphs 136 to 139). DFU will generally take custody and control of electronic storage media removed under either section 16B or 16C.

Removal of documents

  1. Inland Revenue officers can remove documents that are necessary or relevant to the investigation. They can be removed for copying under section 16B or for inspection under section 16C. Inland Revenue officers can also remove other documents under section 123 of the SSA, which relates to the seizure of items in plain view.
  2. The power in section 16B to remove documents accessed under section 16 in order to make copies was provided to the Commissioner to address the risk of documents being destroyed, removed or tampered with in certain cases. Section 110(d) of the SSA authorises the Commissioner to seize anything that is the subject of the search, and under section 110(g), to copy any document that may lawfully be seized. Under section 110(i), the Commissioner can copy electronically stored material (this subsection reflects the case law). These sections also provide the Commissioner with an alternative to copying on-site where it is not possible or practicable to do so.
  3. In order to remove documents under section 16C, the Commissioner requires either a warrant or the consent of the occupier. Neither a warrant nor consent is required in order to remove the documents for copying under section 16B.
  4. When documents are seized, and the Inland Revenue officer in charge is satisfied that the documents are owned by the occupier, they will provide the occupier with a notice (or provide one within seven days after the seizure), setting out:
    1. A general description of what has been seized (the inventory). For example, the number of folders or boxes of documents removed, and the number of hard drives imaged.
    2. Information about the occupier or owner's right to access the seized documents under sections 16B(4) and 16C(5).
    3. Information about the occupier or owner's right to apply for access to any document relating to the search warrant application or the exercise of the search power that led to the seizure, as provided for in section 133(2)(a)(ii) of the SSA. Generally, information used in warrant applications will be confidential until the conclusion of the investigation and any litigation.
    4. Information about the legal privilege and non-disclosure right in sections 20 and 20B to 20G. Note that other categories of privilege in the SSA do not apply to tax matters (refer to the Schedule to the SSA and Appendix I of this OS for an explanation of which parts of the SSA apply to the TAA).
  5. By providing the notice referred to in paragraph 1120, Inland Revenue will have complied with the requirement in section 133 of the SSA to provide an inventory.
  6. If the Inland Revenue officer in charge of the search is satisfied that none of the items seized are owned by the occupier, then this notice will not be provided to the occupier. Where the Inland Revenue officer in charge has reason to believe someone else is the owner of the documents, they will provide a notice to that person within seven days after the seizure. When documents are removed from, for example, a tax agent's office, the notice will be provided to the tax agent, not to each individual client whose records may have been uplifted.
  7. In the following circumstances, section 134 of the SSA enables Inland Revenue to apply to a Judge for a postponement of the requirements in paragraph 112:
    1. Where compliance would endanger the safety of any person; or
    2. Where compliance would prejudice on-going investigations.
  8. When the Inland Revenue officer in charge is uncertain of the status of items, they will be removed under section 112 of the SSA. For the purposes of the inventory and notice requirements, the time of seizure will start from when a decision is made as to whether or not the documents are necessary or relevant. If they are not relevant, they have not been seized, and will be returned to the owner or occupier.
  9. In addition, documents or electronic storage devices that relate to other matters the Commissioner needs to investigate can also be removed under section 123 of the SSA (seizure of items in plain view) during the exercise of section 16. Such items will also be subject to the notice and inventory requirements described above.
  10. Documents removed for copying under section 16B will be returned as soon as practicable. Refer to paragraphs 142 to 145 for further information on the return of documents.
  11. Documents removed under section 16C will be retained for as long as necessary for a full and complete inspection. This includes use in court proceedings. If the Commissioner determines that documents removed under section 16B for copying will be required for a full and complete inspection, the Commissioner will either:
    1. Seek the consent of the occupier; or
    2. Obtain a warrant under section 16C(2).

Legal advisers, tax agents and support persons

  1. The Commissioner considers it preferable to have legal advisers or tax agents present during a search. This assists the occupier, as well as the Commissioner, in several ways. Having advisers present can reduce the amount of time Inland Revenue is present at the premises, reducing business interruption and our presence in the home. It can facilitate the answering of proper questions, assist with the resolution of issues regarding legal privilege and non-disclosure, and may reduce the stress for the occupier.
  2. Inland Revenue encourages occupiers to have a professional adviser present, such as a lawyer, accountant or other tax adviser, and to consult with their advisers in private.
  3. Waiting for legal advisers to arrive can delay the search, and result in Inland Revenue staff being present on the site for longer than necessary. It is the Commissioner's practice to be present on a site for the minimum amount of time necessary to conduct the access, including copying and removal of documents, so as to cause the least disruption to occupiers and businesses that is consistent with achieving the purpose of the search.
  4. Therefore, occupiers will be provided with a reasonable opportunity to contact a legal adviser, and a decision as to when the search will commence will be made by the Inland Revenue officer in charge of the search. Inland Revenue officers do not have to wait until advisers arrive before commencing the search, imaging of electronically stored material, or removal of documents (see paragraphs 127 to 139 for the legal privilege and non-disclosure right process).
  5. Where proceedings have been commenced (for example, an injunction) in relation to the exercise of section 16, section 180(2)(a) of the SSA authorises the Commissioner to continue with the search.
  6. Occupiers may also prefer to have a tax agent or other support person present; however that person's presence must not interfere with the search.
  7. The presence of other support persons will also be at the discretion of the Inland Revenue officer in charge of the search, and will take into account the occupier's particular circumstances, as well as those of the premises and the search (see to paragraphs 95 and 96).

Legal privilege and the non-disclosure

  1. For the purposes of the Commissioner's search powers, the only privileges or confidentialities that apply to Inland Revenue's ability to access and seize documents are those provided for in sections 20 to 20G. The privileges and rights to confidentiality in section 102 and in subpart 5 of Part 4 do not apply to the Commissioner's search powers because they have been specifically excluded by the Schedule to the SSA and by sections 20 and 20B. In practice, however, Inland Revenue regards the section 20 privilege as extending to litigation privilege where New Zealand lawyers (as defined by the Lawyers and Conveyancers Act 2006) are involved. For this purpose, litigation privilege is regarded as covering documents created for the dominant purpose of advising or assisting on reasonably apprehended litigation.
  2. Confidential communications between legal practitioners and their clients that meet the criteria under section 20 are privileged from disclosure under section 16. This does not apply to documents made or brought into existence for the purpose of committing or furthering the commission of some illegal or wrongful act (section 20(1)(c)).
  3. Sections 20B to 20G set out the criteria for claiming a non-disclosure right over tax advice documents subject to the information gathering power in section 16. A document is not a tax advice document if it was created for purposes that include committing, or promoting or assisting the committing of, an illegal or wrongful act (section 20B(2)(c)).
  4. But for these limited exceptions, an information holder has the right to not disclose a document that is eligible to be a tax advice document. See Standard Practice Statement 05/07 Non-disclosure right for tax advice documents (or any subsequent replacements of the SPS) for more information.
  5. The Commissioner will adhere to the provisions of sections 20 to 20G regarding legal privilege and the non-disclosure right for tax advice documents when exercising sections 16, 16B and 16C including when imaging electronic storage media.
  6. See Standard Practice Statement 10/02 Imaging of electronic storage media (or any subsequent replacements of the SPS) for more information on the Commissioner's practices when imaging electronic storage media.
  7. As decided in A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586, the mere removal and imaging of documents that may be legally privileged or subject to the non-disclosure right, does not breach that right or privilege, because there is no disclosure of those documents. This is confirmed by sections 110(h) and (i) and sections 113(2)(h) and (i) of the SSA which specifically authorise the accessing, previewing and cloning of intangible material in computer systems or other data storage devices.
  8. The Commissioner is not responsible for asserting privilege or the non-disclosure right for taxpayers, but will advise occupiers of these rights where documents potentially subject to privilege or the non-disclosure right under sections 20 and 20B to 20G are anticipated.
  9. A blanket claim of legal privilege or of the non-disclosure right across all documents is not a valid claim. As set out in the process below (paragraph 136), the Commissioner will provide an adequate opportunity for the owner of hard copy documents to review the documents to enable particularised claims to be made within a reasonable timeframe.
  10. Where practical, Inland Revenue officers will use the following process in relation to section 20 (legal privilege) and sections 20B to 20G (the non-disclosure right):
    1. Provide the occupier with the opportunity to seek advice and make particularised claims under section 20 and sections 20B to 20G.
    2. In relation to electronically stored documents that are potentially subject to legal privilege or non-disclosure right claims, to copy or image, seal and remove them, or to remove the electronic storage device containing those documents for imaging off-site.
    3. Where electronically stored documents have been imaged:
      1. The imaged copy will remain in the custody of DFU, and will not be released to Inland Revenue investigators until after this process is complete; and
      2. The owner can provide a list of keywords to DFU to be used to identify documents to which section 20 or sections 20B to 20G apply.
    4. In relation to hard copy documents that are potentially subject to legal privilege or non-disclosure right claims, to seal and remove them.
    5. Work with the owner of the documents to agree a process for:
      1. Storage of the documents;
      2. Making particularised claims of legal privilege or non-disclosure within a reasonable timeframe; and
      3. Reviewing and resolving disputed privilege and non-disclosure right claims within a reasonable timeframe.
    • Where particularised claims are not made, and disputed claims are not resolved, within the agreed timeframe, the Commissioner will then continue to use the documents for investigative purposes.
  1. While the Commissioner might agree to documents potentially subject to claims of legal privilege or the non-disclosure right remaining sealed for a reasonable period until the owner has the opportunity to review them, make particularised claims, and resolve any disputed claims, where the owner has neglected or chosen not to do so, the Commissioner can take any steps necessary to enable the investigation to continue.
  2. In addition, section 180(2)(b) of the SSA specifically authorises the Commissioner to continue with the investigation when proceedings have been commenced in relation to the exercise of section 16 or the use of any evidential material obtained from the search. Taxpayers can apply to the High Court under section 180(3) of the SSA for interim orders overriding section 180(2).
  3. If the claim of legal privilege or the non-disclosure right cannot be resolved between the Commissioner and the person making the claim, either party can apply to a District Court Judge for orders under section 20(5) as to whether the claim for legal privilege is valid, or under section 20G as to whether the document is a tax advice document (or for related orders regarding tax contextual information).

After the search

Access to documents

  1. Where the Commissioner removes a document under section 16B, the owner is entitled under section 16B(4) to inspect and obtain a copy of the document that is removed:
    1. At the time of removal; or
    2. At reasonable times subsequent to the removal.
  2. Where the Commissioner removes and retains a document under section 16C, the owner is entitled under section 16C(5) to obtain a copy of the document either at the time of removal or at reasonable times thereafter.

Return of documents

  1. The Commissioner will return original documents as soon as practicable, as required by section 16B(2). This includes electronic storage media removed for imaging.
  2. Where documents have been removed for retention and inspection under section 16C, the originals will not be returned until the Commissioner has completed a full and complete inspection of those documents. A full and complete inspection includes the use of the documents in court proceedings, therefore the Commissioner may not be able to provide a timeframe by which documents are likely to be returned.
  3. However, under section 16C(7), the Commissioner can make certified copies of documents retained under section 16C, and those copies are admissible as evidence in court as if they were the original documents. Therefore, unless there are good reasons to retain the originals, the Commissioner will generally copy and return original documents retained under section 16C.
  4. Examples of good reasons to retain the original documents are:
    1. Where the Commissioner intends to undertake forensic examination of the documents.
    2. Where the documents are unable to be quickly organised and analysed (this could be due to the poor state of the documents or poor recordkeeping by the owner).
    3. Where a certified copy will not provide the best evidence in court proceedings (for example, marks on the original document may be illegible on the copy).

Offences

  1. The importance of the Commissioner being able to obtain information under sections 16, 16B and 16C means that it is an offence to obstruct the Commissioner or an authorised officer in carrying out those powers, and it is an offence to provide the Commissioner with false information in relation to the exercise of section 16.
  2. There are a number of specific offences in the TAA and the SSA relating to search powers, as well as offences under the Crimes Act 1961. The TAA and SSA offences are:
    1. Obstruction under section 143H.
    2. Not providing information when required to do so by a tax law, under section 143(1)(b).
    3. Knowingly not providing information under section 143A(1)(b).
    4. Knowingly not providing information with intent to evade tax or obtain a refund or payment of tax, under section 143B(1)(b) and any of (f), (g) or (h).
    5. Knowingly providing false, incomplete or misleading information under section 143A(1)(c).
    6. Knowingly providing false, incomplete or misleading information intending to evade tax or obtain a refund or payment of tax, under section 143B(1)(c) and any of (f), (g) or (h).
    7. Aiding, abetting, inciting or conspiring with another person to commit an offence against the TAA, under section 148.
    8. Failing to comply with a direction under section 117(1) of the SSA when a search warrant is pending, being an offence under section 176 of the SSA.
    9. Failing to stop a vehicle as soon as practicable when required to do so, under section 177 of the SSA.
    10. Failing to carry out obligations in relation to computer systems when required to do so by section 130(1) of the SSA, which is an offence under section 178 of the SSA.
    11. Disclosing information acquired through the exercise of a search power, under section 179 of the SSA.
    12. Knowingly failing to comply with section 87(1)(a)before accessing restricted information, under section 143E(1)(a).
    13. Knowingly communicating any restricted information in contravention of section 87(1)(b) after having certified in the manner prescribed by section 87(3), under section 143E(1)(b).
  3. If convicted of an offence under section 143H, a taxpayer will be liable for a fine of up to $25,000 for the first offence, and up to $50,000 for each subsequent offence.
  4. Where the failure to provide information (for example, answers to proper questions, or reasonable facilities and assistance) is done knowingly and with the intention to commit evasion or a similar offence, a taxpayer could be liable for a fine of up to $50,000, or imprisonment for up to five years, or both.
  5. Failing to assist with a search when required to do so under section 130(1) of the SSA carries a maximum sentence of imprisonment of three months.
  6. And under section 179 of the SSA, disclosing information acquired through the exercise of a search power carries a maximum sentence of imprisonment of six months (and a fine for body corporates of up to $100,000).
  7. Decisions to prosecute will be made in accordance with the Solicitor-General's Prosecution Guidelines and Inland Revenue's Prosecution Framework.

Summary

  1. The powers in sections 16, 16B and 16C of the Tax Administration Act are essential to the compliance functions and duties of the Commissioner. They will be exercised along with the powers in the Search and Surveillance Act, preserving legal privilege and non-disclosure rights, and in compliance with the New Zealand Bill of Rights Act where applicable.

This Operational Statement is signed on 26 July 2013.

Graham Tubb
Group Tax Counsel
Legal & Technical Services - Investigations & Advice


Appendix 1: Summary of the application of the SSA to the TAA

Section 89 of the SSA sets out the extent and manner in which the general provisions in Part 4 of the SSA apply to:

  1. powers conferred by other Parts of the SSA and
  2. other enactments.

In relation to other enactments, this is done by enlisting the assistance of a schedule to the SSA:  section 89(2) states that Part 4 applies in respect of powers conferred by the enactments listed in column 2 of the Schedule to the SSA.

The use of a schedule in this way makes it clear that the only provisions which apply to the TAA are those listed in the Schedule. The Schedule itself consists of four columns, listing as follows:

  1. Column 1 states the Act;
  2. Column 2 specifies a section of that Act (the specific search powers);
  3. Column 3 contains a brief description of the power in that section and
  4. Column 4 sets out which provisions in Part 4 of the SSA apply.

The TAA is listed in column 1 of the Schedule, and the Commissioner's search power (section 16) and power to remove and retain documents under warrant (section 16C(2)) are listed in column 2.

Column 4 states that only subparts 1, 3, 4, 7, 9 and 10 (except sections 102, 103(3)(b)(ii), 103(4)(g), 103(7), 115(1)(b), 118, 119 and 130(4)) of Part 4 apply to these powers (subpart 2 contains the warrant application rules).

Act Content   Applies to TAA
Part 1 General provisions - interpretation   Yes - Inland Revenue officers fall within the definition of "enforcement officers."

Plus the TAA is amended to adopt subparts 1, 3, 4, 7, 9, and 10 of Part 4 (except for ss 102, 103(3)(b)(ii), 103(4)(g), 103(7), 115(1)(b), 118, 119 and 130(4)), i.e. a new s16(6A).
Part 2 Police powers   No
Part 3 Enforcement officers' powers & orders   Some - see below.
(because of the definition of "enforcement officer").
  Subpart 1 Surveillance device regime

Declaratory orders
Not able to apply for surveillance device warrants, but some surveillance activities are permissible without a warrant.

Yes.
  Subpart 2 Production orders Yes, but Commissioner will generally use section 17 of the TAA.
  Subpart 3 Misuse of Drugs Act search powers No.
  Subpart 4 Powers of search incidental to arrest/detention No.
Part 4 Subpart 1 Application of this part Yes.
  Subpart 2 Consent searches No.
  Subpart 3 Application for, and issuing of, search warrants Yes.
  Subpart 4 Carrying out search powers Yes, with some exclusions:  ss 102, 103(3)(b)(ii), 103(4)(g), 103(7), 115(1)(b), 118, 119 and 130(4)).
  Subpart 5 Privilege and confidentiality No.
  Subpart 6 Procedures for seized/produced materials No.
  Subpart 7 Immunities Yes.
  Subpart 8 Reporting No.
  Subpart 9 Offences Yes (but not all are available).
  Subpart 10 Miscellaneous Yes.
Part 5 Amendments to other enactments s302 amends TAA Yes.
Sch. Application of specified provisions of Part 4 to other enactments   Yes - to sections 16 and 16C(2) TAA.