Recording Inland Revenue Interviews (July 2010) (WITHDRAWN)

This statement has been withdrawn and is provided for historical purposes only.

This item also appears in Tax Information Bulletin (TIB) Vol 22 No 7 (August 2010).

Introduction

1. For the purpose of administering the Inland Revenue Acts¹ it is often necessary for Inland Revenue officers to conduct interviews with taxpayers and others. The purpose of an interview will range from general information exchanges to resolve queries to formal interviews where there is the potential for litigation.
2. Interviewees will generally be asked to attend an interview on a voluntary basis. However, section 19 of the Tax Administration Act 1994 gives the Commissioner the authority to require any person to attend an interview. Compulsory interviews under section 19 are held when considered appropriate by the Commissioner to obtain information from taxpayers or other parties.
3. As statements made by taxpayers and others during an interview may be admissible as evidence in litigation it is important that all interviews are carried out in a fair and open manner and in a way that will not make the statement inadmissible. It is also important that interviews are clearly recorded and that the questions and answers are unambiguous.
4. Not all interviews conducted by Inland Revenue will be electronically recorded. In many cases traditional hand-written notes will be sufficient. However, Inland Revenue is increasingly conducting interviews using technology.
5. This Standard Practice Statement (SPS) sets out Inland Revenue's standard practice for using technology to record interviews where it is appropriate.
6. Unless specified otherwise, all legislative references in this SPS refer to the Tax Administration Act 1994 ("the TAA").

Application

7. This SPS applies from 1 July 2010. It replaces SPS INV-330 Tape-recording Inland Revenue Interviews which was published in TIB Vol 12, No 5 (May 2000).
8. It does not apply to independent contractors conducting interviews on behalf of Inland Revenue, such as a research company contracted to carry out a customer survey, or an external solicitor contracted to carry out a Child Support Review.

Legislation

9. Section 19 of the TAA provides:

10. 19 Inquiry by Commissioner

    1. The Commissioner may, for the purpose of obtaining any information with respect to the liability of any person for any tax or duty under any of the Inland Revenue Acts or any other information required for the purposes of the administration or enforcement of any of those Acts or for the purpose of carrying out any other function lawfully conferred on the Commissioner, by notice, require any person to attend and give evidence before the Commissioner or before any officer of the Department authorised by the Commissioner in that behalf, and to produce all books and documents in the custody or under the control of that person which contain or which the Commissioner or the authorised officer considers likely to contain any such information.
    2. The Commissioner may require any such evidence to be given on oath and either orally or in writing, and for that purpose the Commissioner or the authorised officer may administer an oath.
    3. No person summoned or examined under this section shall be excused from answering any question on the ground that the answer may incriminate the person or render the person liable to any penalty or forfeiture.
    4. No statement made by any such person in answer to any question put to the person shall in criminal proceedings be admissible against the person, except upon a charge of perjury against the person in respect of the person's testimony upon that examination.
    5. The provisions of the Crimes Act 1961 which relate to perjury are applicable to any inquiry under this section.
    6. A person required to attend before the Commissioner or an authorised officer may receive out of money appropriated by Parliament for the purpose such sum on account of travelling expenses and loss of time as the Commissioner thinks reasonable and orders accordingly.

10. Principle 6 of the Privacy Act 1993 provides:

11. Principle 6 Access to personal information

    1. Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled-
       1. To obtain from the agency confirmation of whether or not the agency holds such personal information; and
       2. To have access to that information.
    2. Where, in accordance with subclause (1)(b) of this principle, an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.
    3. The application of this principle is subject to the provisions of Parts 4 and 5 of this Act.

11. Section 27 of the Privacy Act 1993 provides for exceptions to Principle 6, one of which may sometimes apply to Inland Revenue responsibilities for administering the Revenue Acts
    1. An agency may refuse to disclose any information requested pursuant to principle 6 if the disclosure of the information would be likely-
       ...
       3. To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial;... .

Standard Practice

12. The electronic recording of interviews is common practice by regulatory and investigative agencies. There are advantages for both parties in electronically recording interviews:
    • Using technology to record an interview will take less time than taking hand written notes;
    • Electronic recording provides an exact record of what was said by all the parties at the interview;
    • Those parties at the interview are able to concentrate fully on the interview instead of there being delays while taking full written notes;
    • An electronic copy of the interview will, in most cases, be made available to the interviewee.

13. It is likely that electronic recording would be necessary where:
    • The tax affairs which the interview relates to are complex;
    • There are numerous facts to be gathered;
    • There are inconsistencies in the interviewee's explanations to date;
    • The relationship between the interviewee and Inland Revenue has deteriorated and objectivity needs to be restored;
    • There is a possibility that Inland Revenue may commence civil or criminal proceedings.
    
    These are examples only and the decision by Inland Revenue staff to record an interview is not limited to these situations.

14. An interviewee may request that an interview be recorded. Such requests should be made before the interview in sufficient time to arrange recording equipment.

Preliminary matters

15. If Inland Revenue intends to electronically record an interview, the interviewee will be advised of that intention when the interview is arranged.
16. If a decision about electronically recording an interview subsequently changes, the interviewee is to be advised of that decision as soon as practicable before the interview starts.
17. Where an interviewee is attending an interview voluntarily the interview will only be electronically recorded with the interviewee's consent and co-operation. If the interviewee declines to consent to recording of a voluntary interview, Inland Revenue will respect that decision. There will be no secret recording of interviews.
18. Compulsory interviews under section19 will always be electronically recorded, using video recording technology in appropriate cases. The interviewee's consent is not required for electronically recording section19 interviews.

The recording process

19. There are three ways in which an interview may be recorded:
    1. in handwriting (which may be typewritten later);
    2. by audio recording;
    3. by video recording.
20. As noted, it is preferable to record interviews using technology rather than taking hand-written notes. Video recording is not regularly used but may be used when it is appropriate, such as when the interview is likely to be used evidentially.
21. Hand-written notes may be taken even when an interview is being recorded electronically.

The interview

22. After the formal introduction to the interview, the interviewer will ask the interviewee to acknowledge that the interview is being electronically recorded (and in the case of a voluntary interview, with the consent of the interviewee).
23. The interview may be admitted in evidence. To avoid any misunderstanding, it is important that everyone involved in the interview speaks clearly and slowly.
24. If more than one interviewer is asking questions, they will need to identify themselves for purposes of transcription.

Copies

25. The purpose of an interview is to obtain information to assist in fulfilling the Commissioner's duties. For this reason copies of interviews are kept for reference and for use in potential litigation.
26. Under Principle 6 of Privacy Act 1993² a person is entitled to ask for a copy of any material that relates to them held by, for example, a government agency or an employer.
27. Hand-written interview notes: If the result of an interview is recorded in writing, the statement will be read back to the interviewee, or the interviewee should be asked to read it. The interviewee will be asked to initial each page except the last, which should be signed with the interviewee's full name. If the handwriting is easily legible, it may not be necessary to have the record typed. If requested, the interviewer, in most cases, will give the interviewee a copy of the statement immediately. If copying facilities are not immediately available, a copy may be posted to the interviewee.
28. Digitally recorded interviews: If a digital recording system is used, the original recording on the hard drive of a laptop computer or hand-held recorder cannot be sealed but will be moved to a permanent and secure storage repository. The technology used by Inland Revenue creates tamper proof recordings and these are transferred to permanent storage under strict controls to ensure future security of related records. The interviewee must be told this. In such cases the interviewer should immediately make copies to CD or DVD (depending on the technology available). One copy is to be sealed in the interviewee's presence. The other copy will become an Inland Revenue file copy.
29. Copy of the interview record to the interviewee: Inland Revenue will, in most cases, give the interviewee a copy of a recorded interview. However, in some cases there may be reason to suspect that giving an interviewee a copy may prejudice the maintenance of the law, which in Inland Revenue's case means the administration of the Inland Revenue Acts.
30. In cases such as these, the Privacy Act 1993 and the Official Information Act 1992 allow the agency to withhold copies until the investigation has been completed.
31. Where it is decided not to provide a copy immediately, an interviewee will be told of the decision to withhold that copy, and that one will be supplied at the conclusion of the investigation. The interviewee will be advised of their right under section 67 of the Privacy Act 1993 to seek an investigation and review by the Privacy Commissioner of the Commissioner's decision to withhold the copy.

This Standard Practice Statement is signed on 30 June 2010.

Rob Wells
LTS Manager, Technical Standards

1: As set out in the Schedule to the Tax Administration Act 1994

2: Privacy Act 1993. There is a similar provision in section5 of the Official Information Act 1992 (the "Principle of Availability").