General restrictions – possession and power
An information notice cannot require a document to be produced which is not in your possession or power.
‘Possession’ means that you have physical control over the document. It does not matter to whom the document belongs.
‘Power’ means you have the ability to get the document, or a copy of it, from whoever holds it.
This ability to get the document can be through:
- a legal entitlement to make the person holding it give it to you; or
- the influence that you have on the person who owns or possesses the document.
We do not need to be able to prove that a document is in your possession or power before requiring you to produce it.
However, you will not have failed to produce the document (or a copy of it) if you can satisfactorily show that it is not in your possession or within your power to produce.
General restrictions – time periods
An information notice cannot:
- require you to produce a document if the whole of the document originates more than five years before the date of the information notice, unless the notice is given with the approval of the tribunal; or
- be given more than three years after a person has died, if the information notice is for the purposes of checking the tax position of that person.
A document may sometimes have entries made in earlier periods as well as the period for which we are checking the tax position. In this case the person must produce the document if it is required by the information notice, even though part of it is more than five years old, and the information notice does not need to be approved by the tribunal.
There are some restrictions on the types of document and/or information we can require to be provided or produced by an information notice. These restrictions apply even if the document and/or information would otherwise be reasonably required to check a person’s tax position and is in your possession or power. The restrictions cover the following:
- review or appeal material – see RSTP2010;
- personal records – see RSTP2011;
- journalistic material – see RSTP2012;
- legally privileged information or documents – see RSTP2013;
- auditors’ statutory audit information or documents – see RSTP2015; and
- taxpayer notice following a tax return – see RSTP2016.
Restricted documents which are offered to us
If we are offered a document that is on the restriction list we must always remind you that we have no power to inspect it. If after this you still offer us the document then we can inspect it but we will make a full record of the circumstances in which the document was offered for inspection.
Further information notice restrictions
- Information notice restrictions: Review or appeal material – RSTP2010
- Information notice restrictions: Personal records – RSTP2011
- Information notice restrictions: Journalistic material – RSTP2012
- Information notice restrictions: Legally privileged information or documents – RSTP2013
- Information notice restrictions: Disputes about privileged communications – RSTP2014
- Information notice restrictions: Auditors’ statutory audit information or documents – RSTP2015
- Information notice restrictions: Taxpayer notice following a tax return – RSTP2016