Division 353 Notices – how do they work?

The ATO uses Division 353 Notices (including section 353-10 Notices and section 353-15 Notices) as a way of getting information out of you, or others. If the ATO are at your door now, go read about what you absolutely must know first, and come back here later.

If you’ve received a notice in the mail, you have a bit more time – but not much. Use it wisely and make it a priority to get the right advice before too much time passes.

What can the ATO access from me?

The ATO can require you to provide them with particular information by sending you a formal Division 353 Notice, which can require you to do one or more of the following:

  • give them information by answering questions sent to you in writing
  • attend an interview with the ATO and give evidence – they can even require that this evidence is given under oath or affirmation
  • provide documents to the ATO – which they can access directly by accessing your office

These notices are not to be treated lightly – it is an offence not to comply. Having said that, there are restrictions on how and why the ATO can use their information gathering powers, so we recommend that you seek legal advice to make sure that the ATO are within their rights to ask for the requested documents.

You may also be able to claim legal professional privilege over documents that are communications between you and your lawyer, or to claim protection under the accountant’s concession for certain advice prepared by your accountant. A tax disputes lawyer is the best person to provide you with advice on these protections.

How do ATO interviews work?

The ATO can require you to attend an interview with them, at which you will be required to give evidence under oath. You are entitled to have a lawyer with you at this interview, and we strongly recommend that you invoke this right. You should meet your lawyer as soon as possible after receiving the notice, to make sure you have enough time to prepare for the interview.

During an interview, it is important to be clear about your answers, because the ATO will rely on what you say as being fact. If you don’t know the answer, or remember the exact details, you should be clear about this. Never guess the answer to any of the questions.

ATO’s access to information from third parties

The ATO can and does access documents and information about you from third parties.

They do so in a couple of ways.

Firstly, they carry out data matching with a range of third-party sources; banks, employers, eBay and credit card processors, State government departments – the list goes on. This is an everyday occurrence, and helps the ATO to check that you’re reporting income correctly. It also comes in handy if you lodge your own tax returns electronically, as it means that much of your tax information can be pre-filled into your return.

On the other end of the spectrum, the ATO can use Division 353 Notices to ask third parties for specific information or documents that relate to you. For example, the ATO can ask your bank to turn over the contents of your safety deposit box, or if they’re having trouble tracking you down, they can ask your known associates for your contact details.

Division 353 notices are complex. Getting your responses wrong could result in a criminal conviction, or the oversharing of information to which the ATO didn’t have any right to receive. If you’ve received one, protect yourself by getting in touch with a tax lawyer as soon as possible.

This article is not legal advice. It’s a brief summary of a very complicated topic.