Section 17 Notices (July 2005) (WITHDRAWN)

Introduction

1. This Standard Practice Statement (the "Statement") outlines the procedures Inland Revenue will follow when issuing notices, including third party requests, under section 17 of the Tax Administration Act 1994. Section 17, which relates to requisitions for information, is one of Inland Revenue's information-gathering powers. Other powers (such as section 16) which relate to the gathering of information can be, and are, used by the Commissioner in conjunction with section 17 but they are not discussed in this Standard Practice Statement.
   
   
2. This Statement has been updated to incorporate changes to the procedures followed by Inland Revenue when issuing section 17 notices as a result of the introduction of the taxpayer's statutory right to claim non-disclosure of certain tax advice documents. The statutory provisions are contained in sections 20B to 20G of the Tax Administration Act 1994.

Application

3. This Statement applies from 22 June 2005 and replaces GNL - 440 Section 17 Notices published in Tax Information Bulletin Vol 16, No 7 (August 2004).
   
   
4. The references to the right to claim non-disclosure for tax advice documents applies to section 17 notices issued after 21 June 2005 which require disclosure of documents that may be eligible to be tax advice documents. For further information on the right to claim non-disclosure refer to the SPS 05/07 Non-disclosure right for tax advice documents published in Tax Information Bulletin Vol 17, No 6 (August 2005) and available on Inland Revenue's website: www.ird.govt.nz
   
   
5. Unless specified otherwise, all legislative references in this Statement refer to the Tax Administration Act 1994.

Background

6. Before Inland Revenue can verify or make an assessment of a person's taxation liability, information is needed. The Tax Administration Act 1994 gives the necessary powers to collect information including section 17, which empowers the Commissioner of Inland Revenue to require any person to furnish in writing any information and produce books and documents for inspection where it is considered "necessary or relevant" for the Commissioner to exercise his statutory functions.
   
   
7. Inland Revenue will usually request information, books or documents without expressly relying on section 17. This practice fosters a spirit of reasonableness and mutual cooperation.
   
   
8. If information is not provided voluntarily or in a timely manner Inland Revenue will use the statutory authority in section 17 to demand the information. In this case Inland Revenue issues a section 17 notice. Non-compliance with the section 17 notice will result in Inland Revenue invoking the statutory remedies. Inland Revenue reserves the right in some cases to commence the information gathering process with a section 17 notice, for example in cases where it knows of prior instances of non-cooperation from the taxpayer and/or their advisers.
   
   
9. Any request for information with express reference to section 17 should contain a reference to the taxpayers' right to claim non-disclosure to ensure the recipient of the notice is aware of this statutory right belonging to the taxpayer unless the nature of the request does not warrant a reference to the right to claim non-disclosure (ie the request for information relates purely to information which is not contained in tax advice documents). Refer to the SPS 05/07 Non-disclosure right for tax advice documents for further information on what constitutes a tax advice document. If a reference to the non-disclosure right in the request for information is required, the level of detail contained in that reference will depend on the nature of the request, the type of information being requested and the recipient of the request.
   
   
10. The process for making a claim of non-disclosure is set out in the SPS 05/07 Non-disclosure right for tax advice documents. The claim must be made in the specified time period after the Commissioner has issued a section 17 notice requiring disclosure of these documents which may be eligible to be tax advice documents.

Legislation

Tax Administration Act 1994

3	Interpretation
(1)	In this Act, unless the context otherwise requires,- ...
	"Book and document" , and "book or document", include all books, accounts, rolls, records, registers, papers, and other documents and all photographic plates, microfilms, photostatic negatives, prints, tapes, discs, computer reels, perforated rolls, or any other type of record whatever: ... .
17	Information to be furnished on request of Commissioner
(1)	Every person (including any officer employed in or in connection with any Department of the Government or by any public authority, and any other public officer) shall, when required by the Commissioner, furnish in writing any information and produce for inspection any books and documents which the Commissioner considers necessary or relevant for any purpose relating to the administration or enforcement of any of the Inland Revenue Acts or for any purpose relating to the administration or enforcement of any matter arising from or connected with any other function lawfully conferred on the Commissioner.
(1B)	For the purpose of subsection (1), information or a book or document is treated as being in the knowledge, possession or control of a New Zealand resident if-
	the New Zealand resident controls, directly or indirectly, a non-resident; and the information or book or document is in the knowledge, possession or control of the non-resident.]
(1C)	For the purpose of subsection (1B) and sections 143(2) and 143A(2)-
	in determining whether a non-resident is controlled by a New Zealand resident- anything held by a person who is resident in New Zealand, or is a controlled foreign company, and is associated with the New Zealand resident is treated as being held by the New Zealand resident; and a person is treated as being associated with the New Zealand resident if the person and the New Zealand resident are associated under section OD 7, interpreted as if "relative" had the meaning set out in paragraph (b) of the definition in section OB 1, or OD 8(3) of the Income Tax Act 1994; and a law of a foreign country that relates to the secrecy of information must be ignored.
(1D)	If information in writing is required, or books and documents must be produced, the Commissioner may require that the information be furnished, or the books and documents be produced, to a particular office of the Department.
(2)	Without limiting subsection (1), the information in writing which may be required under this section shall include lists of shareholders of companies, with the amount of capital contributed by and dividends paid to each shareholder, copies of balance sheets and of profit and loss accounts and other accounts, and statements of assets and liabilities.
(3)	The Commissioner may, if the Commissioner considers it reasonable to do so, remove and retain any books or documents produced for inspection under this section for so long as is necessary for a full and complete inspection of those books and documents.
(4)	Any person producing any books or documents which are retained by the Commissioner under subsection (3) shall, at all reasonable times and subject to such reasonable conditions as may be determined by the Commissioner, be entitled to inspect the retained books or documents and to obtain copies of them at the person's own expense.
(5)	The Commissioner may require that any written information or particulars furnished under this section shall be verified by statutory declaration or otherwise.
(6)	The Commissioner may, without fee or reward, make extracts from or copies of any books or documents produced for inspection in accordance with this section.

Standard Practice

Section 17 Notice

11. Section 17 gives the Commissioner the power to require persons to produce for inspection books and documents which the Commissioner considers necessary or relevant for any purpose relating to the administration or enforcement of the Inland Revenue Acts. Included within the expression "book and document" are all books, accounts, rolls, records, registers, papers, and all photographic plates, microfilms, photostatic negatives, prints, tapes, discs, computer reels and perforated rolls. It is considered that "discs" would include any kind of recordable disc, ie compact and floppy discs, and DVDs, etc.
    
    
12. Where information is to be demanded under section 17 a notice will be issued (refer to Notice "A" in the attached Appendix). Prior to issuing a section 17 notice, Inland Revenue will consider the following points.
    
    12.1 The reason for requiring the information
    1. Inland Revenue will only require disclosure of information considered necessary or relevant and that is reasonably required in the circumstances of the case.
    
    
    12.2 The impact of the demand on the suppliers of information
    1. Inland Revenue will be reasonable in relation to the quantity of information sought and the timeframe for providing that information. Inland Revenue will reconsider parts of the demand where there is genuine difficulty in obtaining and/or providing that information.
    
    
    12.3 Previous requests for information or attempts to resolve disputes
    1. Generally, apart from where the taxpayer or their authorized tax advisor wishes to claim the right of non-disclosure, a section 17 notice will only be issued following a failure to provide information previously requested, or where specific issues have been identified and an attempt to resolve those issues has failed. There will be occasions where a section 17 notice may be issued without a prior request, e.g. where there have been prior instances of non-cooperation from the taxpayer and/or their advisers, or where the Commissioner otherwise considers that delay, or a less formal approach, may unreasonably increase the risk of non-compliance. (Depending on the circumstances, a refusal or failure to comply with an informal request for information would be non-cooperation and a refusal or failure to comply with a more formal request for information, ie one mentioning section 17, would be non-compliance.) Where the taxpayer's adviser has in the past been uncooperative (including in respect of matters unrelated to the taxpayer) this may be a factor to be taken into account in considering whether a section 17 notice may be issued without a prior request.
       
       
    2. An example of a case where a notice might be issued without a prior request is where an audit has been in progress for some time without a request under section 17 having been made. It would then be appropriate, because the matter may proceed to adjudication, that a notice be issued to ensure that all relevant information has been gathered.
    
    
    12.4 Whether the information is available publicly
    1. Inland Revenue will generally not use section 17 where information is available publicly and will meet the usual charges, for example where the information is held by the Land Information New Zealand, the Companies Office and Quotable Value New Zealand. Public availability of information does not, however, prevent Inland Revenue from requiring information to be provided under section 17.
    
    
    12.5 Whether the Commissioner requires disclosure of the tax contextual information
    1. Where the section 17 notice contains a reference to the non-disclosure right, the section 17 notice should also refer to when the tax contextual information (ie the factual and non tax advice content of the documents) would be required to be disclosed if the Commissioner requires such a disclosure. The section 17 notice should generally advise that disclosure of the tax contextual information (if required by the Commissioner) will be required in a subsequent notice or in rare cases, the section 17 notice will contain a requirement to disclose the tax contextual information as part of the disclosure requirements for the section 17 notice. For further information on the operation of the right to claim non-disclosure and the definition of key terms refer to the SPS 05/07 Non-disclosure right for tax advice documents.
       
       
    2. Notice "A" in the attached Appendix includes a standard paragraph referring to the disclosure of the tax contextual information. In rare cases, where the Commissioner requires disclosure of the tax contextual information as part of the disclosure requirements in the section 17 notice, an alternative paragraph (as set out in Notice "A" in the attached Appendix) should replace the standard paragraph included in the section 17 notice.
    
    
    12.6 The effect upon the disputes resolution process
    1. The disputes resolution process relies on full and prompt disclosure by both the Commissioner and the disputant. Where previous requests have not been met with full and prompt disclosure Inland Revenue will use section 17 notices to obtain information. The use of section 17 prior to the commencement of the disputes resolution process may mean that the number of matters entering that process will be reduced.
       
       
    2. Section 17 may also be used during the disputes process to ensure that all relevant information is gathered and available to Inland Revenue. The disputes process may be truncated and an amended assessment issued where a taxpayer has failed to comply with a section 17 notice during the disputes process.
    
    
    12.7 Inland Revenue's intention to ensure compliance with the notice
    1. Generally, Inland Revenue will use a section 17 notice only where it is prepared to invoke the statutory remedies in the event of non-compliance.
    
    
    12.8 The use of section 16 powers
    1. In some cases Inland Revenue will not request information but will access the books and documents under section 16 which gives the Commissioner the power to enter all places for the purpose of inspecting any books and documents.
    
    
    
13. Nothing in section 17 precludes Inland Revenue from seeking information from multiple sources and from sources other than the affected taxpayer.
14. Separate section 17 notices may be issued for different information and books or documents. If the Commissioner requires the information to be delivered to Inland Revenue, the notice will state that the information be furnished, or the books and documents be produced, to a particular office of the Department.
    
    Requests for significant amounts of documentation
    
    
15. If a significant amount of documentation is requested, the person providing the information will be permitted to send the documents to the nearest Inland Revenue office, which will arrange for them to be forwarded to the office conducting the investigation. Where the delivery costs would be reduced by $20 or more by sending to the nearest Inland Revenue office then it is considered that the amount of documentation is significant. In this circumstance we would generally accept the request to send the information to the nearest office. [1]
    
    
16. The decision whether or not to issue a section 17 notice will generally be the responsibility of a team leader and approval to issue the notice should be given by an officer at or above that level with the exception of section 17 notices requiring disclosure of the tax contextual information.
    
    Legal professional privilege
    
    
17. A taxpayer is entitled, and should have sufficient time, to seek legal advice in respect of whether particular books or documents are subject to legal professional privilege. Section 20 covers the topic of solicitor-client privilege, ie privilege of confidential communications between legal practitioners and their clients. Briefly, it provides that information is privileged from disclosure if it is a confidential communication between a legal practitioner and another legal practitioner (acting in their professional capacities) or a legal practitioner in the practitioner's professional capacity and the practitioner's client and it is made or brought into existence for the purpose of obtaining or giving legal advice or assistance. However financial information and investment records kept in connection with solicitors' trust accounts are not privileged. The other kind of privilege, litigation privilege which relates to pending or contemplated litigation, is not covered by section 20.
    
    Right to claim non-disclosure for tax advice documents
    
    
18. The statutory right to claim non-disclosure relates to tax advice documents required to be disclosed under the Commissioner's information gathering powers including the issuing of section 17 notices. A claim for non-disclosure involves certain disclosures by the taxpayer or their authorised tax advisor. The right to claim non-disclosure belongs to the taxpayer. The statutory provisions contain specific time periods in which the taxpayer (or their authorised tax advisor) is required to make the necessary disclosures. These time periods reflect the need for taxpayers (and their authorised tax advisors) to have sufficient time to ascertain whether particular books or documents otherwise required to be disclosed under a section 17 notice are eligible to be tax advice documents. The taxpayer or their authorised tax advisor will be given at least 28 days to claim the non-disclosure right for those books or documents eligible to be tax advice documents and required to be disclosed under the section 17 notice. This time period will be specified in the section 17 notice. The taxpayer or their authorised tax advisor can make the claim for non-disclosure by completing the form Tax advice document claim (IR 519).
    
    
19. Typically, the Commissioner will then decide after having reviewed the documents and information received pursuant to the section 17 notice, including the information provided on the form IR 519 whether disclosure of the tax contextual information from the documents eligible to be tax advice documents is required. If the tax contextual information is required, a subsequent section 17 notice (refer to Notice "E" in the attached Appendix) will be issued for the tax contextual information and will allow at least another 28 days to provide the tax contextual information.
    
    
20. The tax contextual information must be provided on the prescribed form which is the Tax contextual information disclosure (IR 520). The form IR 520 contains a statutory declaration which needs to be completed by a tax advisor. For further information on tax contextual information and the necessary disclosure requirements, refer to the SPS 05/07 Non-disclosure right for tax advice documents or consult your tax advisor. A copy of the SPS can be found on Inland Revenue's website www.ird.govt.nz
    
    
21. In rare cases, if warranted, the Commissioner may require both the claim for the non-disclosure right and the disclosure of the tax contextual information from those documents potentially eligible to be tax advice documents in the one section 17 notice. In such a case, a taxpayer (and their authorised tax advisor) will be given at least 28 days to comply with all the disclosure requirements of the section 17 notice.
    
    
22. The discretion to require disclosure of the tax contextual information from documents eligible to be tax advice documents will be exercised sparingly in order to minimise compliance costs, and so as not to undermine the spirit of the non-disclosure right rules. Accordingly, an exercise of this discretion will be limited to officers of Inland Revenue at an appropriately high level of delegated authority.
    
    Advice and other work papers prepared by accountants
    
    
23. The Commissioner's policy statement referred to as Commissioner's Policy on Access to Advice and other Workpapers Prepared by Accountants, issued on 6 September 1993 applies to section 17 notices issued on or before 21 June 2005.
    
    
24. Any section 17 notice issued after 21 June 2005 may be subject to the statutory right of non-disclosure and taxpayers and officers of Inland Revenue should follow the practices outlined in the SPS 05/07 Non-disclosure right for tax advice documents.
    
    
25. The Commissioner's policy statement on Access to Audit Work Papers, issued on 15 August 1991 applies in so far as the section 17 notice requires disclosure of auditors' workpapers. The Commissioner is currently considering updating this policy statement to reflect changes in legislation and within Inland Revenue since the publishing of that statement.
    
    Correction of information
    
    
26. Where a taxpayer has complied with an information requisition then, in accordance with section 6 of the Privacy Act 1993 (Information Privacy Principle No. 3), the taxpayer will be allowed to seek access to and correction of that information where Inland Revenue has incorrectly recorded the information.

Changes to Section 17 Notice

27. In following the above process every attempt will be made to maintain contact with the taxpayer so as to provide an opportunity for concerns to be raised. Inland Revenue expects holders of information to contact Inland Revenue where there is genuine difficulty in complying with the demand.
28. Any change to the date for compliance must be agreed before the expiration of the original date. Beyond this, the offence for non-compliance has already occurred and an extension of time will not be given.
    
    
29. Where modification of the notice is agreed it will be recorded in writing (refer to specimen Notice "B" in the attached Appendix).
    
    
30. Any change to the date for compliance as set out in the section 17 notice should consider the impact of the change of date on the time periods allowed for claiming the right of non-disclosure.

Requests to persons other than the taxpayer

31. Some holders of information, such as banks, are willing to provide information but require Inland Revenue to state its legal authority before they will release the information. Generally, where information is required from persons other than the taxpayer and cooperation is likely, Inland Revenue will initially seek the information by a letter (refer to specimen Letter "C1" and the slightly more formal Notice "C2" in the Appendix). The letter may follow a discussion. Letter "C1" is provided by way of example and may be varied according to the circumstances, and it may or may not contain a reference to section 17.
    
    
32. The letter is not a formal section 17 demand. However, generally where the letter is not complied with, a section 17 notice based on specimen Notice "A" will be issued so the third party recipient is informed of the consequences of their non-compliance before further action is initiated.
    
    
33. Any section 17 notice issued to a third party such as a bank should refer to the non-disclosure right subject to paragraph 9 of this Statement. The recipient of the section 17 notice may then choose (if appropriate) to contact the taxpayer to confirm whether the taxpayer (or their authorised tax advisor) is wanting to claim the non-disclosure right over the books or documents required to be disclosed under the section 17 notice issued to the third party.
    
    Controlled non-residents
    
    
34. Under section 17(1), Inland Revenue may require a New Zealand resident to provide information in circumstances where the resident's non-resident employees or agents hold the information for the resident. Section 17(1B) now gives Inland Revenue the further power to require a New Zealand resident to provide information held by a non-resident entity controlled, directly or indirectly, by that New Zealand resident [2]. For example, a husband and wife have 51% of the shares in a foreign company. Inland Revenue can issue a section 17 notice to them requiring that they furnish information held by the foreign company. Subsection (1C) sets out further rules for determining whether a non-resident is controlled, in particular it provides that foreign secrecy laws are to be ignored.
    
    
35. If obtaining the information would be a costly or difficult exercise then generally it would not be required where the tax at stake is immaterial, or when Inland Revenue has access to this information through other sources.
    
    Medical information
    
    
36. In rare instances Inland Revenue may seek access to an individual's medical records. For example, it may be necessary to inquire into the genuineness of a medical certificate. Such requests need careful consideration.

Non-compliance with a section 17 notice

37. It is an offence not to comply with a section 17 notice. Sections 143 and 143A state that an offence has occurred where a person does not provide, or knowingly does not provide, information to the Commissioner when required to do so by a tax law. Furthermore, section 143B provides that it is an offence for a person knowingly not to provide information to the Commissioner or any other person when required to do so under section 17, where that person or any other person does so intending to evade the assessment or payment of tax. However, sections 143 and 143A of the Act state that no person may be convicted of an offence for not providing information, or knowingly not providing information (other than tax returns and tax forms) to the Commissioner if that person proves they did not, as and when required to provide the information, have that information in their knowledge, possession or control. Control here is used in its wider sense and includes material held by others on one's behalf.
    
    
38. If the non-compliance with a section 17 notice relates to a requirement to disclose the tax contextual information from tax advice documents, a number of offences may have occurred, including:
    1. Offences under sections 143 to 143B; or
    2. An offence under section 143H (obstruction); or
    3. An offence under section 11 of the Crimes Act 1961 (false statements or declarations).
       
    
    
    
39. Refer to the SPS 05/07 Non-disclosure right for tax advice documents for further information on breaches of tax advisor's responsibilities in relation to the non-disclosure right.
    
    
40. Where non-compliance occurs, Inland Revenue will not reissue a section 17 notice in a different format. An offence is committed if a section 17 notice is not complied with. However, those receiving section 17 notices have the ability to request a new due date for compliance with the notice before expiration of the original due date as mentioned above.
    
    
41. Where non-compliance occurs, a follow-up notice will generally be issued before further action is taken. The follow up notice will state that the section 17 notice has not been complied with, court orders are being sought and/or prosecution action is being considered (refer Notice "D" attached). A follow-up notice or letter will not be issued in all cases, eg one situation would be where there have been delays in supplying information previously. A follow-up notice does not entitle the taxpayer (or their authorised tax advisor) to claim (for the first time or to make a subsequent claim) the non-disclosure right for tax advice documents that were required to be disclosed under the original section 17 notice.
    
    
42. Where Inland Revenue has issued a follow-up notice, an application for a court order for compliance with the section 17 notice may be made and/or prosecution action may be taken. There are different time limits for laying information to begin prosecution action:

• for the offence of knowingly not providing information when required to do so the time limit is 6 months,
• for the absolute liability offence of not providing information when required to do so the time limit is 10 years, and
• for the offence of knowingly not providing information when required and the offender does so, for example, intending to evade the assessment or payment of tax, there is no time limit.

43. Once the offence is committed prosecution action should be commenced within a reasonable time of the date of non-compliance unless there are special circumstances, eg the offence not being discovered until a later time. In general where a person complies with the requirement to provide information after the stipulated time but prior to the issue of a summons by the Court commencing the prosecution action foreshadowed in Notice "D", the prosecution would not be commenced.

This Standard Practice Statement is signed on 13 July 2005.

Graham Tubb
National Manager
Technical Standards

 

Footnotes

[1]  This paragraph is included in accordance with Inland Revenue's statement in Tax Information Bulletin Vol 15, No 5 (May 2003) at page 56 that there would be administrative guidelines on this point.

[2]  See Tax Information Bulletin Vol 15, No 5 (May 2003) at pages 55 and 56 for a brief discussion of this amendment.

        

Appendix

Section 17 Notices and related notices

            This Appendix is not part of the Statement.  The notices and letter are specimens only being provided for the guidance of Inland Revenue officers.  

Notice "A":       Section 17 notice

Notice "B":       Agreed change / amendment to section 17 notice

Letter "C1":      Where recipient other than the taxpayer (third party letter)

Notice "C2":     Where recipient other than the taxpayer (third party formal
section 17 notice)

Notice "D":       Follow-up notice for non-compliance

Notice "E"        Section 17 notice requiring disclosure of the tax contextual information

Note:   The notice/letter must be typed on Inland Revenue letterhead.  The wording in italics may change in individual cases.  Notice "C2" is an alternative that may be used to letter "C1"

 

Notice "A":  Section 17 notice

To:      [name]

[address]

IRD Number:

Our reference:

NOTICE TO FURNISH INFORMATION AND PRODUCE BOOKS AND DOCUMENTS 

[Brief history explaining why the Notice has been issued.]

 

Therefore I, [name], [designation], [office], being duly authorised by the Commissioner of Inland Revenue under section 7 of the Tax Administration Act 1994 (the Act), require you under section 17 of the Act (copy attached) to furnish in writing the information sought below, and produce for inspection the following books and documents which I consider necessary or relevant to establish [possible phrase:  your correct taxation liability].

The information to be furnished, and the books and documents to be produced for inspection, are as follows:

1 .        ...... [List all information required.]

2 .        ......

In addition, please provide a list of all documents required that are not in your possession or under your control and where known, identify the person who possesses or has control of such documents.  [As required]   

I also require that the written information or particulars furnished be verified by statutory declaration.  [Include where appropriate.] 

Taxpayers' non-disclosure rights

Any document covered by legal professional privilege as provided for in section 20 of the Act is outside the scope of this notice.  You should consult your legal advisers if assistance is required in determining whether a specific document is covered by legal professional privilege.  Please provide a list of all documents for which legal professional privilege is claimed.  [This paragraph is inapplicable where the information requested consists of financial documents only.]

Taxpayers have a statutory right of non-disclosure which applies to certain documents containing tax advice.  The statutory provisions are contained in sections 20B to 20G of the Act.  If any document required to be disclosed under this notice is eligible for non-disclosure under these provisions, the form Tax advice document claim (IR 519)  should be completed to make the claim of non-disclosure.  A copy of this form can be found on Inland Revenue's website www.ird.govt.nz  The claim is required to be made within [28 days insert date after this if applicable] of the date of this notice.  The claim should be provided to Inland Revenue as per the delivery instructions below.  For further information on the right to claim non-disclosure refer to the SPS 05/07 Non-disclosure right for tax advice documents or consult your tax advisor.  A copy of this SPS can be found on Inland Revenue's website www.ird.govt.nz

[If it is known that the taxpayer intends to make a claim for the right of non-disclosure, a copy of the form IR 519 Tax advice document claim should be included with this notice.]

If there is a claim to exercise the right of non-disclosure, the Commissioner may subsequently require disclosure of the tax contextual information from the documents which are subject to a claim of non-disclosure.  The Commissioner will notify you in writing if a disclosure of the tax contextual information is required.  Refer to the SPS 05/07 Non-disclosure right for tax advice documents for further information on the meaning of tax contextual information and the disclosure requirements.

Or

[Insert this paragraph and delete the above paragraph if the tax contextual information is required as part of the disclosure requirements for section 17 notice. This should only occur in special circumstances when the appropriate delegated authority has authorised this action.]

If there is a claim to exercise the right of non-disclosure, the Commissioner requires disclosure of the tax contextual information from the documents which are subject to a claim of non-disclosure by [insert date which needs to be at least 28 days from the date of this notice].  The tax contextual information must be provided on the form Tax contextual information disclosure (IR 520)  which contains a statutory declaration.  Refer to the SPS 05/07 Non-disclosure right for tax advice documents for further information on the meaning of tax contextual information and the disclosure requirements.

Delivery/Collection Instructions

[Name] will call at [place and time] on [date - ] to collect the information.  Or  Please deliver the information to [postal address, or street address where courier or hand delivery is required, of a particular office or nearest office, where the taxpayer has permission to send to the nearest office, of Inland Revenue] marked for my attention or for the attention of [name] by [date] or within 28 days from the date of this notice.  Or Please fax the information to [facsimile address] marked for my attention by [date -].  If you wish to make other arrangements as to collection will you please telephone [name] on [telephone number].

If gathering this information is going to be time consuming or would otherwise cause you difficulty, please contact [name] on [telephone number] as they are willing to assist.  If you wish to discuss the content or detail of this notice, please contact [name] well before the time mentioned in the preceding paragraph as modifications will be agreed to in cases of genuine difficulty.

If you consider that the amount of information required is significant, you may be permitted to send the [information, books or documents] to the nearest Inland Revenue office.  (Where the delivery costs would be reduced by $20 or more by sending to the nearest Inland Revenue office then it is considered that the amount of documentation is significant.)  [Include this paragraph where appropriate.]   

Non-compliance

I would point out that it is an offence not to comply with this notice.  Failure to comply may lead to a court order being requested to enforce compliance and/or prosecution action.  I draw your attention to sections 143 and 143A of the Tax Administration Act 1994.  These sections state an offence has occurred where a person does not provide, or knowingly does not provide, information to the Commissioner when required to do so by a tax law.  Furthermore section 143B provides that it is an offence for a person knowingly not to provide information to the Commissioner or any other person when required to do so under section 17, where that person or any other person do so intending to evade the assessment or payment of tax.

However, sections 143 and 143A of the Act state that no person may be convicted of an offence for not providing information, or knowingly not providing information (other than tax returns and tax forms) to the Commissioner if that person proves they did not, as and when required to provide the information, have that information in their knowledge, possession or control.  Control here is used in its wider sense and includes material held by others on your behalf. 

I would also point out that once you have complied with this Notice you have the right to inspect the information that you have provided and to correct any such information. 

 

Dated at [location] this ... day of [month][year].

[A notice does not require 'yours faithfully'.]

 

[Name]

[Designation of signatory]

 

Notice "B":  Agreed change / amendment to
section 17 notice

[Name and address]

 

IRD Number:

Our reference:

Attention:

AMENDMENT TO NOTICE TO FURNISH INFORMATION

Further to the previous notice to furnish information dated [date] and our conversation of [date] I confirm that the following amendment(s) to the notice to furnish information are agreed: 

1.      I will now call on [day and date - ] at [place] to collect the information [including the form IR 519 Tax advice document claim (if applicable)].  Or Please deliver the information [including the form IR 519 Tax advice document claim (if applicable)]to [a particular office or nearest office, where the taxpayer has permission to send to the nearest office, of Inland Revenue] by [date -] for the attention of [name].    [Note: any change to the date for compliance must be agreed before the expiration of the original date.  Beyond this date a breach has occurred, [and a claim for the right of non-disclosure cannot be made (if applicable)], and an extension of time cannot be given.]

2.      ..... 

If you have any queries please contact me on .......

 

Dated at .......... this .... day of .........., ......

 

[Name]

[Designation of signatory] 

 

Letter "C1":  Where recipient is a person other than the taxpayer (3^rd party letter)

[Date]

[Name and Address] 

Attention: ...

Dear ...

Re: [Full Names (for individuals include all Christian or first names) / Address (including last known address where possible) / Known Bank Accounts / Telephone Numbers / IRD Numbers / Date of Birth / Date of Incorporation, etc.] 

Would you please forward a copy of the following information or produce the following books and documents relating to the above persons: 

1.      ......  [List the information or books or documents required and where applicable include the period for which the information being requested is required.] 

2.      ......  [Etc as required.] 

The above information and/or books and documents is/are required by [date, allow at least five working days].   

Please send the above information and/or books and documents to [address of particular Inland Revenue office or nearest office, where the addressee has permission to send to the nearest office]  Or Please fax the information to [facsimile address] marked for my attention by [date]. 

This information is required in terms of section 17 of the Tax Administration Act 1994.  Or  My authority for requesting the information is section 17 of the Tax Administration Act 1994.  [This paragraph is optional.]  

Taxpayers have certain statutory rights of non-disclosure for documents containing tax advice.  If any document required to be disclosed under this notice contains tax advice, you should seek further advice on this matter.  For further information on the right to claim non-disclosure refer to the SPS 05/07 Non-disclosure right for tax advice documents or consult your tax advisor.  A copy of the SPS can be found on Inland Revenue's website: www.ird.govt.nz.

If you have any queries, or if I can assist with collection of the information, please contact me on [phone / fax numbers]. 

 

[Signature]

[Name]

[Designation of signatory]

 

Notice "C2":  Where recipient is a person other than the taxpayer (3^rd party section 17 notice)

[Name and Address] 

Attention: ... 

 

IRD number(s):          ...

Our reference:           ... 

NOTICE TO FURNISH INFORMATION

I, [name], [designation] of ... being duly authorised by the Commissioner of Inland Revenue pursuant to section 7 of the Tax Administration Act 1994 (the "Act"), require you to furnish the following information relating to the above person(s) [legislation requires at least 28 days after the date of issue of this notice]]:

1.         .....

The above information, which I consider both necessary and relevant, is required in terms of Section 17 of the Act (copy attached).

Please send the above information and/or books and documents to [address of particular Inland Revenue office or nearest office, where the addressee has permission to send to the nearest office]  Or Please fax the information to [facsimile address] marked for my attention by [date]. 

If any of the above is covered by legal professional privilege, you should seek further advice on this matter. If the privilege does apply to any document, please provide a list of all documents for which the privilege is claimed.  

Taxpayers have certain statutory rights of non-disclosure for documents containing tax advice.  If any document required to be disclosed under this notice contains tax advice, you should seek further advice on this matter.  For further information on the right to claim non-disclosure refer to the SPS 05/07 Non-disclosure right for tax advice documents or consult your tax advisor.  A copy of the SPS can be found on Inland Revenue's website www.ird.govt.nz

Failure to comply with this notice by the required date advised above could result in an offence being committed against the Act.  However, no third party may be convicted of an offence for not providing information to the Commissioner, whether knowingly or not, if that person proves that they did not have that information in their knowledge, possession or control.

If you have any queries, or I can assist with collection of the information, please contact me on ph ..., ext ... .

 

Dated at ... this ... day of ... ...

 

Yours faithfully

 

[Signature]

[Name]

[Designation of signatory]

 

Notice "D":         Follow-up notice for non-compliance

[Name and address] 

 

Attention:

IRD number(s):          ...

Our reference:           ... 

NOTICE OF IMPENDING COURT ORDER AND PROSECUTION ACTION

A Notice to Furnish Information was sent to you on [date].  My records indicate that this request has not been complied with.  Accordingly, I write to inform you that I am considering commencing procedures to obtain a court order for compliance with the request.

I am also considering commencing prosecution action for the following offence(s) [list the offence(s) and relevant section(s)], the penalties for which include maximum fines of:

•        $.... for a first offence,

•        $.... for a second offence or on every other occasion for the same offence, 

•        $.... for subsequent offences [as required], and

•        imprisonment for up to 5 years[as required].   

A copy/copies of the relevant section/s is/are attached. 

Please advise me immediately of any reasons why you consider the Inland Revenue Department should not take this action. 

 

Dated at .......... this .... day of .......... ......

 

[Name] 

[Designation of signatory]

 

Notice "E":         Section 17 notice requiring disclosure of tax contextual information

To:       [name]

            [address]

 

IRD number(s):          ...

Our reference:           ... 

NOTICE REQUIRING DISCLOSURE OF THE TAX CONTEXTUAL INFORMATION

[Brief history referring to date of original section 17 notice and receipt of claim for non-disclosure]

Having considered the information provided under the section 17 notice dated [insert the date of the section 17 notice] and the details provided in the claim for the right of non-disclosure (i.e. the details contained in the form IR 519), the Commissioner requires you to disclose the tax contextual information for the following documents:

1.      [List documents from the form IR 519 which require disclosure of the tax contextual information]

2.      ...

The disclosure of the tax contextual information must be in a statutory declaration in the prescribed form.  The prescribed form is the form IR 520 Tax contextual information disclosure.  A copy of this form has been included with this notice.  Additional copies are available from Inland Revenue's website www.ird.govt.nz

[A copy of the form IR 520 should be included with this notice.]

The statutory declaration in the form IR 520 must be made by an authorised tax advisor who has not been barred from making a statutory declaration. Refer to the SPS 05/07 Non-disclosure right for tax advice documents for further detail on who is an authorized tax advisor.  A copy of the SPS can be found on Inland Revenue's website: www.ird.govt.nz.

The completed form IR 520 must be provided by [insert date - must be at least 28 days after the date of this notice].  Please send the completed form IR 520 to [address of particular Inland Revenue office].

If you have any queries related to the provision of the tax contextual information, please contact me on [phone/fax numbers].

 

[Signature]

 

[Name]

[Designation of signatory]