Agents who have been appointed by an executor or administrator will now have direct access to a deceased taxpayer’s information on the ATO’s Online services for agent following the successful passage of the legislative instrument made through the commissioner’s remedial power (CRP).
The ATO had previously feared that the CRP would be delayed until mid-August, following the postponement of parliamentary sittings in light of COVID-19, but a resumption of sitting over the last week saw the legislative instrument come into effect from 15 May.
The change means the ATO can now legally disclose protected information to the registered tax agent or BAS agent, or legal practitioner of an executor or administrator of an estate of an individual who has died, where it previously could not.
Importantly, there will only be lawful access if the executor or administrator has a grant of probate or letters of administration, respectively.
“If an executor or family member requests your assistance with a deceased estate but does not have a grant of probate or letters of administration, you must not add the deceased person to your client list. You may still assist them, but you cannot lawfully be an authorised contact on the deceased person’s records in our systems,” the ATO said.
Agents had been without access to deceased taxpayers’ information since the old tax agent portal closed on 29 November 2019.
The old tax agent portal had previously provided that data readily because it did not adhere to the letter of the law, according to those who worked closely with the ATO on the issue.
The CRP, which gives the Commissioner of Taxation limited powers to modify the operation of tax law in circumstances where entities will benefit, or at least be no worse off, as a result of the modification, has only been used twice previously.
“The modification will significantly reduce the administrative burden for an executor or administrator of a deceased estate in finalising the tax affairs of the deceased. It will enable them to be represented by a registered tax agent, BAS agent or legal practitioner in their dealings with the commissioner,” the explanatory statement said.
“The commissioner recognises that managing the affairs of the deceased can be complex, that the passing of a deceased person can be a stressful and emotional time, and that executors and administrators often need to be able to obtain assistance from their representatives in finalising those affairs.”