Taxation Administration Act 1953

*Restricted DPT evidence is not admissible in evidence in proceedings under Part IVC on an appeal to the Federal Court of Australia related to the *DPT assessment.

Restricted DPT evidence means information or documents that:

the entity that is the subject of the *DPT assessment (or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of that entity), had in its custody or under its control at a time before, during or after the *period of review; and

the Commissioner did not have in his or her custody or under his or her control at any time in the period of review.

Subsection (1) does not prevent *restricted DPT evidence from being admissible in evidence in the proceedings if:

the Commissioner consents to the admission of the restricted DPT evidence in accordance with subsection (4); or

the court in which the proceedings take place considers that the admission of the restricted DPT evidence is necessary in the interests of justice; or

the restricted DPT evidence is expert evidence that:

comes into existence after the *period of review; and

is based on evidence that the Commissioner had in his or her custody or under his or her control at any time in the period of review.

For the purposes of paragraph (3)(a), the Commissioner may give the consent if the Commissioner considers that it is reasonable to do so.

In making a decision under paragraph (3)(a) or (b), the Commissioner or the court must have regard to:

whether, if the *restricted DPT evidence were not admissible in evidence in the proceedings, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and

whether it would have been reasonable for the entity that is the subject of the *DPT assessment (or the associate of that entity mentioned in paragraph (2)(a)) to have given the Commissioner the restricted DPT evidence within the *period of review.

The Commissioner must give a consent for the purposes of paragraph (3)(a) if failure to do so would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

A consent for the purposes of paragraph (3)(a) is to be in writing.

If the Commissioner gives a consent for the purposes of paragraph (3)(a), the Commissioner must give the entity that is the subject of the *DPT assessment a copy of the consent as soon as practicable afterwards.