Will the Section 106A amendment let LHDN access your bank accounts, without consent or knowledge?
Let’s take a look at the controversial amendment, and find out what FACTS really are!
Section 106A : Does It Let LHDN Access Your Bank Accounts?
Section 106A was just added to the Income Tax Act 1967, with the passing of the Finance Bill 2021 on 15 December 2021.
This section empowers the Inland Revenue Board (LHDN or HASiL) to access bank account information for the purpose of making garnishee order applications.
The director-general may, by notice under his hand, require any financial institution to furnish, within a specified time in the notice, the bank account information of that person, if any, or the purpose of making an application to court for a garnishee order
A garnishee order is used by creditors to collect debts from debtors by “garnishing” their bank accounts, and is nothing new.
However, much was made about Subsection (2) which states that financial institutions ordered to furnish the bank account information will not be allowed to disclose to anyone that such a request has been made.
So what’s really going on?
Section 106A Lets LHDN Access Bank Accounts For A LIMITED Purpose…
Many people have been sharing articles on Section 106A, claiming that it will allow LHDN to collect information on how much money they really have, in order to collect additional taxes.
Some even suggested (jokingly or otherwise) that people should withdraw their cash to keep at home, to avoid LHDN “garnishing” their hard-earned money.
The truth is – Section 106A only lets LHDN access bank account information for a specific and LIMITED purpose.
Let me summarise the key points :
- LHDN can only ask for your bank account information for the explicit purpose of making a garnishee order application.
- Before such a garnishee proceeding can begin, you would have already undergone a civil proceeding, which ended with a judgement against yourself.
- Hence, the requirement that the Director-General must have a “notice under his hand”, before LHDN can proceed with the garnishee order application.
- Before LHDN can make a garnishee order application, it must know which bank accounts you have. This is where they use Section 106A to make that request to the bank.
- Only once LHDN has obtained your bank account information, can it make an application to the court for a garnishee order, to recover the tax you owe.
- Subsection (2) prohibits financial institutions from informing you about such potential garnishee proceedings, to prevent you from moving your money out of those bank accounts.
Section 106A does NOT allow LHDN to request for bank account information for other purposes, whether it is to determine how rich you are, or for tax audit purposes.
Section 106A is also limited to banks, including Islamic banks and development financial institutions. It does not extend to investment fund accounts, so it wouldn’t really help LHDN in looking for people evading taxes.
Section 106A Access To Bank Accounts : Official LHDN Statement
On 18 December 2021, LHDN issued a press statement clarifying its access to your bank account. It is in Bahasa Malaysia, so here is my English translation :
ACCESS TO TAXPAYER BANK ACCOUNT HAS LIMITS
Inland Revenue Board (HASiL) refers to several news reports about HASiL’s power to access taxpayer bank accounts without first obtaining the account holder’s consent.
HASiL would like to clarify that the new S106A amendment of the Income Tax Act (ACP) 1967 that was approved in the Finance Bill 2021 on 15 December 2021 has granted HASiL the right to obtain taxpayer bank account information only for cases that involve garnishee orders in any court that has decided to allow the garnishee proceeding.
Garnishee proceeding is a process to enforce monetary judgements by seizing or freezing debts that must be repaid to any party, in this case HASiL, if there are tax arrears that have not be paid by the taxpayer.
This new amendment will help HASiL administer the country’s direct tax system more effectiveness by minimising tax leakage by taxpayer’s failure to pay their existing tax arrears, while increasing the rate of voluntary tax compliance.
Nevertheless, the power under this new amendment does not give HASiL absolute power to access taxpayer bank accounts frivolously. It must undergo a specific judicial process, and is limited to accesses that have already undergone civil proceedings earlier.
Taxpayers who are willing to handle their tax obligations in an orderly manner do not need to worry about this S106A ACP 1967 amendment as it does not apply to them.
In conclusion, the new S106A ACP 1967 amendment only gives HASiL the power to obtain taxpayer bank account information after garnishee proceedings are permitted by the court. HASiL once again stress that taxpayer bank account information that do not involve garnishee action cannot be accessed by HASiL through this amendment.
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Dr. Adrian Wong has been writing about tech and science since 1997, even publishing a book with Prentice Hall called Breaking Through The BIOS Barrier (ISBN 978-0131455368) while in medical school.
He continues to devote countless hours every day writing about tech, medicine and science, in his pursuit of facts in a post-truth world.
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