Taxation Administration (Tax Debt Information Disclosure) Declaration 2019

This instrument, the Taxation Administration (Tax Debt Information Disclosure) Declaration 2019, declares a class of entities whose tax debt information may be disclosed to credit reporting bureaus by taxation officers under the Taxation Administration Act 1953 (the Act), specifically for the purposes of section 355‑72 in Schedule 1 to the Act (see Part 2, note). The declaration is made by the Minister and dated 19 December 2019 (front page). The instrument is made under the authority of the Act (cl 3) and takes effect for "the whole of this instrument" on the 60th day after registration (cl 2(1) and the commencement table). The instrument borrows defined terms from the Act and the Income Tax Assessment Act 1997 (cl 4 and cl 5). It defines "tax debt information" as information relating to an entity's tax debts that may be disclosed under subsections 355‑72(1) or 355‑72(4) in Schedule 1 to the Act (cl 4).

Mechanically, the instrument does one legal thing: it declares, under subsection 355‑72(5) in Schedule 1 to the Act, a specific class of entities eligible for tax-debt disclosure to credit reporting bureaus. The substantive declaration appears at clause 6. An entity falls within the declared class only if it meets all of the clause 6(1) criteria: registration in the Australian Business Register (ABR) under the A New Tax System (Australian Business Number) Act 1999, subject to specific exclusions (cl 6(1)(a)); having one or more tax debts totalling at least $100,000 that have been due and payable for more than 90 days (cl 6(1)(b)); and failing the engagement/complaint tests set out at cl 6(1)(c). Clause 6(2) lists specified categories of tax debts that are to be disregarded in calculating the total tax debt for the $100,000 threshold (installment arrangements where the entity is complying; pending applications for release under s 340‑5; lodged taxation objections under Part IVC; applications for review or appeal to the AAT or Federal Court under s 14ZZ; SIS Act review procedures under s 344; and active complaints with the Inspector‑General of Taxation where the Commissioner becomes aware after reasonable steps).

In short, the instrument creates a rule-based filter that determines which ABR‑registered business entities may have their "tax debt information" passed to credit reporting bureaus, subject to specified dollar, time and procedural exceptions. The operative legal vehicle is the declaration of a class under subsection 355‑72(5) in Schedule 1 to the Act; the actual disclosure remains operationally effected by taxation officers under subsections 355‑72(1) or (4) of Schedule 1 to the Act (cl 4).

The instrument relies on several defined and referenced concepts from the Taxation Administration Act 1953 and connected statutes. The key concepts are:

• Tax debt information: defined in cl 4 as information relating to the tax debts of an entity that may be disclosed under subsections 355‑72(1) or 355‑72(4) in Schedule 1 to the Act. The instrument does not itself list the categories of information; it references the Act’s Schedule 1 for that content.

• Declared class of entities: clause 6 declares the class of entities whose tax debt information may be disclosed under subsection 355‑72(5) in Schedule 1 to the Act. The declaration operates by specifying logical criteria (registration status, debt quantum and age, and engagement/complaint status) which an entity must satisfy to be included.

• Registration in the Australian Business Register (ABR): clause 6(1)(a) requires the entity to be registered under the ABN Act, but excludes entities registered as (i) deductible gift recipients, (ii) complying superannuation funds, (iii) registered charities, or (iv) government entities. Those classes are explicitly carved out from the declared class.

• Debt threshold and duration: clause 6(1)(b) sets a quantitative and temporal threshold: one or more tax debts that total at least $100,000 and that have been due and payable for more than 90 days.

• Engagement / dispute processes and exclusions: clause 6(1)(c) and clause 6(2) specify procedural and engagement-related factors that remove particular tax debts from the $100,000 calculation or otherwise exclude an entity from the declared class. The specified procedural channels include:

  • Instalment arrangements under s 255‑15 in Schedule 1 to the Act where the entity is complying (cl 6(2)(a));
  • Applications for release under s 340‑5 in Schedule 1 to the Act where the application is pending or within a 60‑day post‑decision window (cl 6(2)(b));
  • Taxation objections lodged under Part IVC (s 14ZL being the definition reference) where the objection is pending or within a 60‑day post‑decision window (cl 6(2)(c));
  • Applications for AAT review or Federal Court appeal under s 14ZZ where proceedings have not concluded (cl 6(2)(d));
  • Requests for reconsideration and AAT review under s 344 of the Superannuation Industry (Supervision) Act 1993 where proceedings have not concluded (cl 6(2)(e)-(f));
  • Active complaints with the Inspector‑General of Taxation that are, or could be, the subject of an investigation under paragraph 7(1)(a) of the Inspector‑General of Taxation Act 2003, provided the Commissioner becomes aware of the complaint after taking reasonable steps (cl 6(2)(g) and cl 6(1)(c)(i)/(ii)).

The effected population is narrowly defined by clause 6. The instrument targets entities that are ABR‑registered under the ABN Act (A New Tax System (Australian Business Number) Act 1999), except those registered in specific categories: deductible gift recipients, complying superannuation funds, registered charities, and government entities (cl 6(1)(a)). Thus the affected pool is ABR‑registered business or commercial entities rather than those specific excluded categories.

Within that ABR‑registered population, an entity is affected only if it meets the joint conditions in clause 6(1):

• it has one or more tax debts, the total of which is at least $100,000; and
• those tax debts have been due and payable for more than 90 days (cl 6(1)(b)); and
• it does not satisfy the engagement/complaint conditions in cl 6(1)(c).

The instrument therefore concentrates on overdue, relatively large tax debts (minimum $100,000 total and more than 90 days overdue). Smaller debts and more recent debts are not captured by clause 6(1)(b). The instrument further narrows the affected population by excluding amounts that fall within the disregarded categories in clause 6(2) (instalment arrangements being complied with; pending release applications; lodged taxation objections; AAT/Federal Court review or appeal proceedings not concluded; review avenues under the SIS Act; and active Inspector‑General of Taxation complaints of the specified kind where the Commissioner is aware).

Who decides whether a particular entity falls into the declared class is an operational question. The declaration is made by the Minister, but clause 6 is phrased to be applied by the Commissioner and taxation officers who are authorised under the Act to disclose tax debt information under subsections 355‑72(1) or (4) in Schedule 1 to the Act (see cl 4 and the Part 2 note). The instrument itself does not prescribe the process for assessing an entity against the criteria, nor does it specify evidentiary standards or procedural steps for the Commissioner’s determination beyond the "reasonable steps" phrase in relation to checking with the Inspector‑General of Taxation (cl 6(1)(c)(ii) and cl 6(2)(g)).

Entities who have taken statutory dispute steps or are complying with a scheduled payment arrangement are explicitly shielded from inclusion for the purposes of calculating the $100,000 threshold (cl 6(2)(a)-(f)). That creates an operational distinction between entities that are actively engaging via legal or administrative processes and those that have not.

The instrument itself does not create broad new duties on the public beyond the indirect effect that certain conduct will expose an entity to disclosure. Instead it operates as a classificatory instrument that triggers the operation of disclosure powers in Schedule 1 to the Act. Still, several duties and rights are implicated and are set out, implicitly or explicitly, in the instrument’s text:

• Duty on entities to manage engagement if they wish to avoid inclusion: an entity that wants to avoid being within the declared class must ensure that either (i) its total tax debts do not meet the $100,000 and 90‑day threshold, (ii) it has entered into and is complying with an instalment arrangement under s 255‑15 (cl 6(2)(a)), (iii) it has an active application for release under s 340‑5 with the Commissioner and the application satisfies the timing conditions (cl 6(2)(b)), (iv) it has lodged a taxation objection in the manner set out in Part IVC and the objection is pending or within the 60‑day post‑decision window (cl 6(2)(c)), (v) it has applied for AAT review or Federal Court appeal under s 14ZZ and proceedings are ongoing (cl 6(2)(d)), (vi) has sought reconsideration under s 344 of the SIS Act or AAT review under that Act and proceedings are ongoing (cl 6(2)(e)-(f)), or (vii) has an active complaint with the Inspector‑General of Taxation and the Commissioner becomes aware of it following reasonable steps (cl 6(2)(g)). Those are effectively the procedural actions that preserve exclusion for purposes of the $100,000 threshold.

• Right to use statutory dispute processes: the instrument recognises and protects the status of statutory dispute and review channels by excluding certain debts while those processes are live or within the specified windows (cl 6(2)(b)-(f)). Those procedural rights (application for release, taxation objection, AAT/Federal Court review, SIS Act reconsideration/review) are referenced and used as exclusionary criteria.

• Duty on the Commissioner to take "reasonable steps" to confirm whether the Inspector‑General of Taxation has a complaint: clause 6(1)(c)(ii) and clause 6(2)(g) create an operational expectation that the Commissioner will take reasonable steps to confirm whether the Inspector‑General has a relevant complaint. The instrument does not define what constitutes "reasonable steps", but it places the Commissioner’s knowledge as a condition for exclusion in the Inspector‑General complaint context.

• Right to timeframe protection after service of a decision: for both release applications (cl 6(2)(b)) and taxation objections (cl 6(2)(c)), if a Commissioner’s decision has been made but a notice of that decision has been served, the statute provides a 60‑day period after service during which the debt is still to be disregarded (i.e. not counted towards the $100,000 total).

This instrument does not itself create criminal penalties, civil sanctions, or new enforcement mechanisms. Its legal effect is classificatory: it declares a class of entities for which the disclosure power under Schedule 1 to the Act may be exercised. Enforcement and penalties remain within the framework of the Act and related statutes, not within this instrument.

Operational enforcement implications that follow from the declaration are:

• Triggering disclosure powers: once an entity meets the declaration criteria in clause 6, taxation officers may disclose the entity’s tax debt information to credit reporting bureaus under subsections 355‑72(1) or (4) in Schedule 1 to the Act (see cl 4 and the Part 2 note). Any consequences arising from that disclosure (for example commercial or contractual consequences that arise after credit reporting bureaus receive information) are downstream effects not regulated in this instrument.

• No additional penalty provisions in the instrument: the instrument contains no separate penalty or sanction provisions. It does not prescribe fines, enforcement procedures, or compliance notices. It does not alter the legal consequences of non‑payment of tax beyond the existing provisions of the Act and other laws.

• Reliance on existing safeguards and remedies in statute: because the instrument references existing objection and review mechanisms (Part IVC objections, s 14ZZ appeals, s 340‑5 release applications, s 344 SIS Act mechanisms, and Inspector‑General complaint processes), the practical enforcement dynamic is that entities who use those mechanisms in accordance with the law have their related debts disregarded for the threshold calculation for defined periods (cl 6(2)). The instrument thereby uses those statutory safeguards as functional checks against disclosure.

• Administrative steps for the Commissioner: clause 6(1)(c)(ii) and clause 6(2)(g) implicitly place an administrative obligation on the Commissioner to take "reasonable steps" to confirm whether the Inspector‑General has a complaint. That expectation is not backed by a specified penalty for failure, but it conditions the exclusion on the Commissioner’s awareness following reasonable steps, giving the Commissioner an evidentiary role in determining exclusion.

• No statutory right to compensation attached: the instrument does not create any express right to compensation or remedy in the event of erroneous disclosure. Any rights or remedies for wrongful disclosure would need to be sought under the Act’s privacy, administrative law, or other applicable provisions outside this instrument; those are not created or modified here.

This instrument is explicitly cross‑referential. It is made under the Taxation Administration Act 1953 (cl 3), and it operates by reference to multiple provisions within the Act and to related statutes. The instrument integrates with existing statutory processes and defines exclusionary criteria by reference to specific statutory mechanisms:

• Schedule 1 to the Taxation Administration Act 1953: the whole declaration is framed to operate under section 355‑72 in Schedule 1 to the Act. Clause 4 defines "tax debt information" by reference to subsections 355‑72(1) and (4) in Schedule 1. The instrument’s Part 2 note expressly states that it declares the class of entities whose tax debt information may be disclosed by taxation officers under subsection 355‑72(1) in Schedule 1 to the Act.

• Income Tax Assessment Act 1997: clause 5 states that expressions used in the instrument have the same meaning as in the Income Tax Assessment Act 1997, under subsection 3AA(2) of the Act. That provides definitional consistency for terms used in the instrument that are defined elsewhere.

• A New Tax System (Australian Business Number) Act 1999 (the ABN Act): clause 6(1)(a) requires ABR registration under the ABN Act and lists categories of ABR registration that are excluded (deductible gift recipients, complying superannuation funds, registered charities, government entities). The instrument therefore interacts directly with the ABR and ABN Act registration taxonomy.

• Taxation objection and Part IVC of the Act: the instrument refers to "taxation objection" as defined in s 14ZL of the Act (cl 4). Clause 6(2)(c) uses the existence and status of a taxation objection (lodged in the manner set out in Part IVC) as an exclusion from the debt calculation.

• Section 255‑15 (Schedule 1 to the Act): clause 6(2)(a) excludes tax debts where an entity has entered into an instalment arrangement under s 255‑15 and is complying, tying the disclosure classification to payment arrangement status under the Act.

• Section 340‑5 (Schedule 1 to the Act): clause 6(2)(b) excludes tax debts where the entity has applied for release under s 340‑5 and the application is pending or in a 60‑day post‑decision window.

• Section 14ZZ (Act) and appeal/review routes: clause 6(2)(d) excludes debts where the entity has applied under s 14ZZ to the AAT or appealed to the Federal Court and proceedings are ongoing.

The instrument contains its own minimal amendment/commencement records but no subsequent amendment entries in the provided text. From the instrument itself:

• Date and maker: the instrument is dated 19 December 2019 and is made by Michael Sukkar, Minister for Housing and Assistant Treasurer (front page). It carries the name Taxation Administration (Tax Debt Information Disclosure) Declaration 2019 (cl 1).

• Commencement: clause 2(1) and the commencement table state that "the whole of this instrument" commences on the 60th day after the day the instrument is registered. The table is explicitly noted as relating only to the instrument "as originally made" and is not updated for later amendments (cl 2(1) and the note). The instrument does not specify its registration date in the text provided, therefore operative commencement would occur 60 days after registration as recorded in the official Gazette or the Commonwealth Register of Legislation.

• Authority and placement: clause 3 records that the instrument is made under the Taxation Administration Act 1953, which is the statutory authority for the Minister to make such a declaration.

• Notes concerning publication: clause 2(2) clarifies that information in column 3 of the commencement table is not part of the instrument and that information in that column may be inserted or edited in any published version. This is an administrative note about how commencement information is presented in published versions and does not alter the substance of the declaration.

• No later amendments included in the supplied text: the supplied instrument text contains no later amendment entries, saving provision, or repeal. The instrument’s own note indicates the commencement table relates only to the instrument as originally made and will not be amended in that table for later amendments; but the provided text contains no subsequent amending notices or revised clauses.

Because the supplied text is the original instrument text, any amendment history after registration,whether by subsequent legislative instruments, disallowance, repeal, or amendment,would need to be checked in the official legislative register. The instrument itself does not record any amendments, repeal dates, or transitional provisions beyond the commencement clause described above.

The instrument does not record or cite any litigation history. The text contains no references to judicial decisions, and it names no cases. It is a ministerial declaration; its legal operation is to declare a class of entities for the purposes of a statutory disclosure power (subsection 355‑72(5) in Schedule 1 to the Act). The instrument therefore carries no embedded judicial precedent or litigation narrative.

What the instrument does provide are references to procedural pathways that can generate review and litigation in the event a disputed debt is contested. Specifically, the instrument incorporates and preserves the relevance of the following statutory review avenues, each of which has its own potential litigation record outside this instrument:

• Taxation objections under Part IVC of the Act (see cl 6(2)(c) and cl 4’s definition referencing s 14ZL). An objection decision can be made, and the instrument recognises the 60‑day post‑service period associated with those decisions.

• Applications for review in the Administrative Appeals Tribunal (AAT) or appeals to the Federal Court under s 14ZZ of the Act (cl 6(2)(d)).

• Applications for release under s 340‑5 in Schedule 1 to the Act (cl 6(2)(b)).

• Requests for reconsideration and AAT processes under s 344 of the Superannuation Industry (Supervision) Act 1993 (cl 6(2)(e)-(f)).

• Complaints to the Inspector‑General of Taxation that may fall within investigations under paragraph 7(1)(a) of the Inspector‑General of Taxation Act 2003 (cl 6(1)(c) and cl 6(2)(g)).

Any litigation that might concern the validity, proper application, scope, or consequences of this declaration would therefore arise in the context of administrative law challenges (for example, to a taxation officer’s decision to disclose), privacy or defamation claims (if a third party alleges harm from disclosure), or disputes over whether particular debts fall within the exclusionary criteria. None of those judicial proceedings or outcomes are recorded in the instrument itself.

Practitioners should therefore treat the instrument as a statutory declaration that activates disclosure powers in the Act; any litigation testing the operation, reasonableness, or correctness of disclosure would proceed under the usual administrative law and civil law routes and would not be described by the instrument.

The instrument’s operational detail contains several technical traps and factual dependencies that could cause an entity to be included in the declared class even if it believes it has protective measures in place. The following points are drawn directly from the text and are matters for practical attention:

• Registration status matters, and the exclusion categories are narrow: clause 6(1)(a) requires ABR registration under the ABN Act, but excludes only four classes (deductible gift recipients, complying superannuation funds, registered charities, government entities). Entities registered in the ABR under other statuses (for example, trading companies, partnerships, trusts) do not enjoy those exclusions. Misclassification on the ABR could therefore change an entity’s exposure.

• Dollar and time thresholds are conjunctive: the entity must have tax debts totalling at least $100,000 and those debts must have been due and payable for more than 90 days (cl 6(1)(b)). An entity with $99,999 of overdue debt or an overdue period of, for example, 89 days will not satisfy clause 6(1)(b) and thus will not fall within the declared class. The thresholds are precise and both must be met.

• Instalment arrangements must be in fact complied with: clause 6(2)(a) excludes tax debts to the extent the entity has entered into an arrangement under s 255‑15 and "the entity is complying with that arrangement". If the arrangement exists but the entity fails to comply, the debt will not be disregarded under cl 6(2)(a). The instrument does not define "complying", leaving room for the Commissioner to assess compliance against the arrangement’s terms.

• Timing windows after decision service are finite: for release applications (cl 6(2)(b)) and taxation objections (cl 6(2)(c)), a decision by the Commissioner removes the exclusion unless the notice has not been served or the service was within the previous 60 days. In practical terms, if the Commissioner issues a decision and serves notice, the protection of the 60‑day window expires after 60 days, exposing the debt to the threshold calculation.

• Lodging an objection or application is not enough unless the procedure is followed correctly: clause 6(2)(c) links disregards to taxation objections "lodged in the manner set out in Part IVC". Failure to comply with the formal lodging requirements of Part IVC (e.g. errors in form, timing, or service) could prevent the debt from being disregarded.

• "Reasonable steps" by the Commissioner is an undefined standard: clauses 6(1)(c)(ii) and 6(2)(g) turn on whether the Commissioner becomes aware of an Inspector‑General complaint after taking "reasonable steps" to confirm whether the Inspector‑General has a complaint. The instrument does not define "reasonable steps", so an entity cannot be certain what notice or evidence is sufficient to make the Commissioner "aware". Practically, an entity with an Inspector‑General complaint should ensure the Commissioner’s office has verifiable notification or evidence sufficient to demonstrate the Commissioner was informed.

Compliance here means steps an entity can take to avoid being included in the declared class in clause 6 and thereby avoid potential disclosure of tax debt information to credit reporting bureaus under Schedule 1 to the Taxation Administration Act 1953. The instrument’s text points to concrete, statutory actions and timing considerations that entities ought to follow. Practical compliance steps derived from the instrument are:

1. Confirm ABR registration status (cl 6(1)(a)):

   • Verify the entity’s ABN record in the Australian Business Register and ensure that the entity’s ABR registration status is correct. If the entity is legitimately a deductible gift recipient, complying superannuation fund, registered charity or government entity, confirm that status is recorded because those categories are explicitly excluded from the declared class.

2. Monitor debt quantum and ageing (cl 6(1)(b)):

   • Maintain accurate records of tax debts and their due dates. The declaration applies only where the total of one or more tax debts is at least $100,000 and the debts have been due and payable for more than 90 days. Aim to ensure either debts are paid, settled, or reduced below the $100,000 aggregate threshold, or that overdue days are remedied within the 90‑day window.

3. Enter and comply with instalment arrangements where appropriate (cl 6(2)(a)):

   • Where a cashflow issue exists, consider negotiating and entering into an instalment arrangement under section 255‑15 in Schedule 1 to the Act, and ensure strict compliance with the terms of any arrangement. The instrument disregards debts to the extent the entity is complying with such an arrangement, so ongoing compliance is critical.

4. Lodge timely and correctly‑formed release applications and objections (cl 6(2)(b)-(c)):

   • If disputing the debt or seeking relief, apply for release under s 340‑5 in Schedule 1 or lodge a taxation objection under Part IVC in the manner set out in that part. Ensure formal requirements for lodging are met (timing, form and service) so that the debt remains disregarded while the application/objection is active or within the 60‑day post‑decision window.

5. Preserve review rights where applicable (cl 6(2)(d)-(f)):

   • If an objection decision has been made, promptly consider AAT application or Federal Court appeal under s 14ZZ where appropriate, or, in the superannuation context, use s 344 reconsideration and AAT review mechanisms. Keep the proceedings active to ensure exclusion applies while proceedings are ongoing.