3.1 During the 2011-12 financial year, substantial numbers of taxpayers and tax agents expressed dissatisfaction with the delay in processing income tax refunds, the related impacts and the ATO's handling of their concerns. This was highlighted by the Commonwealth Ombudsman, the IGT and the ATO itself receiving increased taxpayer complaints relating to the amount of time that cases within the ITRIP were taking to be finalised.
3.2 In her submission to the Joint Committee of Public Accounts and Audit, the Acting Commonwealth Ombudsman observed that in 2011-12, the average completion time for ITRIP cases was five months, with about 30 per cent taking between six and nine months to complete.75 The submission noted that this delay resulted in a large number of complaints both to the Commonwealth Ombudsman's office as well as the ATO's own complaint section.
3.3 Indeed, the ATO reported that between 2010-11 and 2011-12, there was an increase in the number of ITRIP-related complaints from 1,269 to 7,381.76 The ATO recognises this significant increase in complaints, and notes that 'the primary cause of these complaints is client dissatisfaction with the time taken for the review to be completed'.77
3.4 As discussed in Chapter 4, since 2011-12, the ATO has markedly improved its audit finalisation times for ITRIP cases. In order to understand the improvements the ATO has made to the ITRIP since that year, and the remaining areas for improvement, it is important to understand the causes for the delays in 2011-12 and their impacts.
Causes of delays and the ATO's response
3.5 In the 2011-12 year, the ITRIP risk models were expanded to detect a wider range of risks across a number of different lodgement channels. It is generally accepted that the delays were due to the difficulties experienced by the ATO in managing the unexpected high volume of cases being stopped by the ITRIP as a result of this expansion.
3.6 The ATO had planned its resources on the basis that it expected to complete 32,658 cases in 2011-12.78 The expected number of cases in 2011-12 appears consistent with the number of income tax returns stopped in previous years. However, the number that was actually stopped was more than three times the expected amount. The numbers of returns stopped by the ITRIP in the three years from 2010-11, 2011-12 and 2012-13 year to date are outlined in Table 10 below.
|Financial year in which returns were stopped|
Source: Data warehouse: 2011 year as at 6/2/2013, 2012 year as at 5/2/2013 and 2013 year to date as at 4/2/2013; Active Compliance Individuals Stream Plan 2010-11; ICDM Stream Plan 2011-12; ICDM Stream Plan 2012-13.
3.7 The ATO attributed the increased volume of stopped returns to the enhancements and modifications made to the ITRIP models. It summarised the changes to the models as follows:79
- A change to the expert business rules model to take into account extended lodgment periods for analysis. (Expanded to include all current, future and prior year returns back to 2009).
- The Serious Non-Compliance models (network detection and identity crime) commenced operating across all channels (including tax agent lodgment channels) for the full financial year.
- Expert business rules — there were fifteen rules and twenty six watch lists in operation including the introduction of new rules to include:
- Spouse Tax Offset.
- Education Tax Refund.
- Expansion of expert business rules across all channels in addition to e-tax (including tax agent channels).
3.8 The ATO has advised that it became aware of the increased volume of returns stopped by the ITRIP sometime over the period from the end of July to the middle of August 2011. During this time, it became apparent that the numbers of returns requiring review under the ITRIP would likely, or had already, exceeded the estimated numbers for that year.80
3.9 In response, a group of senior ATO officers from across a number of different business lines convened in August 2011 to discuss possible strategies to manage the increased workload and to mitigate the adverse impacts on taxpayers. The group considered a number of mitigation options, including:81
- re-assessing the risk and identifying any low-risk candidates suitable for early release, which would involve the development of automated processes for checking held returns against third party data and developing a low-risk threshold to determine which returns should be released without further compliance activity;
- increasing the level of resourcing applied to this workload, including increasing staff numbers, increasing overtime hours and making use of staff in other areas of the ATO such as the call centre and complaints sections to streamline processes related to the ITRIP;
- seeking opportunities to improve case actioning efficiency, including the use of bulk letters to tax agents seeking information on a number of cases and the reliance on the notice of assessment to inform taxpayers of adjustments rather than specific correspondence. (The ATO notes that both options created some difficulties for tax agents and taxpayers);82 and
- seeking opportunities to communicate with taxpayers and their intermediaries on the expected delays and related issues, including at external consultation forums, through publications such as media releases83 and weekly progress reports84 and liaising with the Commonwealth Ombudsman on complaints received from taxpayers and tax agents.
3.10 In its Risk Treatment Plan for the ITRIP, dated December 2011, the ATO also gave some consideration to contingencies and possible strategies where the ITRIP yielded more cases than expected. Relevantly, the Risk Treatment Plan noted:85
If the number of cases stopped is significantly higher than expected it may exceed the capacity for Individuals Compliance and Data Matching [ICDM] to action.
This can be addressed by reassessing the low-risk thresholds applied to all cases and releasing cases that would otherwise be held, or increasing ICDM capacity. Ongoing review is required to identify this circumstance early.
3.11 The above-mentioned plan is dated four to five months after the ATO was first aware of the increased numbers of stopped income tax returns. The ATO advises that the document is a later formalisation of matters considered by the previously mentioned group of senior ATO officers in August 2011, when the higher than expected case numbers first emerged.86
3.12 In addition, the group of ATO senior officers also delivered updates and briefings to the relevant ATO Second Commissioners on progress of the ITRIP and to outline a number of strategies being implemented, including bulk mail out letters to tax agents and compliance manager contact and site visits with agents who had a high number of clients with returns held.87
3.13 The IGT's observations in relation to the specific initiatives implemented by the ATO are outlined in the sections below.
Community and tax agent communication
3.14 The ATO sought to manage taxpayer and tax agent expectations through communication of its progress during Tax Time. It used a number of different channels, including weekly Tax Time progress reports which commenced early July, discussions at consultation forums such as the ATO Tax Practitioner Forum which occurred in October 2011 and the publication of an article on its E-Link service in December 2011 to provide an update for tax agents.88
3.15 In relation to the ATO's weekly Tax Time progress reports, the IGT notes that only the first report provided taxpayers with any indication as to when they may expect their refunds. Specifically, that update provided:89
We commenced processing income tax returns for the 2011 year on Wednesday 6 July. Refunds for these returns will start being received from Thursday 14 July.
3.16 In subsequent updates, the ATO did not outline any expected refund timeframes. Instead, the ATO adopted standardised phrasing to assure taxpayers that 'we are processing according to schedule and will continue to keep you informed as we progress'.90 This statement was later changed to 'processing is continuing in accordance with our plans and schedules with no major impacts on processing timeframes'.91
3.17 The IGT appreciates that these weekly updates may relate to processing of all tax returns rather than those held by the ITRIP and that in relation to general processing, the ATO may have largely been operating to schedule. However, the IGT also notes that taxpayers whose returns are not held under the ITRIP would have little need to seek updates as to the ATO's progress during Tax Time. For taxpayers impacted by the ITRIP seeking updates, it would appear inaccurate and misleading to make statements such as there being no major impacts on processing timeframes. Such statements have the potential to create unnecessary confusion and anxiety for affected taxpayers and tax agents.
3.18 The ATO considers that the risk of confusion and anxiety for taxpayers affected by the ITRIP should have been minimal. The ATO considers this to be so as ITRIP cases account for less than one per cent of the total population of taxpayers lodging income tax returns. Moreover, it advises that under new arrangements in 2012-13 and later years, affected taxpayers are contacted within seven to 14 days in relation to their returns being held for review, an estimated timeframe and a contact point is provided for further queries.
3.19 While it may be true that only a small proportion of taxpayers are impacted by the ITRIP, the actual numbers of affected taxpayers are high. Moreover, while the IGT acknowledges that in 2012-13 the need to rely on general communications decreased as a result of improved ATO timeframes and communications, in the prior years with high numbers of stopped returns and extended delays, the risk of confusion for affected taxpayers was higher.
Lowering risk thresholds and early release
3.20 The ATO has a number of thresholds and systems-based rules to automatically review and release returns deemed to be lower risk or which can be verified against third party data. These rules examine a number of aspects of a particular return to determine whether manual review is required before processing may continue. These include matters such as whether:
- a return from the same taxpayer was stopped in a prior year and released without further action;
- returns reported nil or debit balances (that is, where the taxpayer is required to pay an amount of tax upon the tax return being processed); and
- in light of new data received during Tax Time, the tax returns continued to meet the risk-based criteria for examination under the ITRIP.92
3.21 The ATO has advised that a number of these rules were operational from 1 July 2011 but awaited appropriate third party data before they could be applied against the tax returns held under the ITRIP.93
3.22 In addition to the rules already in existence, the ATO has developed new or updated existing expert business rules and implemented low risk threshold tests to re-assess and release certain lower risk cases without review as early as 9 August 2011.94
3.23 However, in relation to the expert business rules dealing with the education tax refund and spouse offset, both of which the ATO considered were the primary causes of the increased cases, the risk thresholds were not lowered. The ATO notes that an assessment of the cases in question revealed 'a high element of fraudulent and/or dishonest behaviour' and therefore, lowering the threshold to release such cases would have been inappropriate.95 In support of this view, the ATO notes that it adjusted 90 per cent of education tax refund cases and 76 per cent of spouse offset cases.96
3.24 The IGT notes that while the rates of adjustments may be high in relation to these cases, it does not necessarily follow that they represented fraudulent or dishonest behaviour. It is unclear to the IGT how the ATO arrived at this assessment and not the possibility of taxpayers having made errors resulting in overclaiming.
Increasing staff and utilising overtime
3.25 The ATO also considered options to increase staff and the use of overtime to clear backlog cases. However, this did not appear to take place until March 2012, notwithstanding that the ATO intended to apply these measures to immediately to address the risks posed by an increased workload.97
3.26 The number of actual staff engaged against budgeted staffing (in full-time equivalents (FTE)) and overtime hours is set out in Table 11, below.
|Income tax returns
stopped by the ITRIP
|Budget FTE/month||Actual FTE/month||Overtime hours|
|Total returns stopped||109,000|
3.27 The above Table 11 shows that between July and December 2011, only August and November saw an increase in staff over and above the numbers for which the ATO had budgeted. The data shows that the clearest increases in staffing occurred between March and June 2012 when the ATO worked to clear the backlog of returns prior to the commencement of the new financial year. Similarly, the IGT notes that no overtime was utilised until March 2012. The staffing numbers were also below budget in December and January although this may be a result of the Christmas and New Year period.
3.28 The ATO has advised that the staffing figures in Table 11 do not incorporate an unquantified number of staff from other areas of the ATO which were brought in to assist in dealing with the matters.99 These included staff from the:
- ICDM stream, including HRR staff, who were redirected to assist in compliance verification work;
- call centre in August 2011 developing strategies for enquiries and complaints management, including the establishment of a dedicated team for ITRIP complaints;
- Client Support and Assistance section of the ATO contacting affected stakeholders by phone between September to December 2011; and
- Tax Agent Compliance Strategy section contacting and visiting tax agents, with high numbers of client tax returns held under the ITRIP, to assist with reviewing and finalising returns.100 The ATO's tax agent visits initiative is discussed in more detail in Chapter 4.
Other improvement initiatives
3.29 In mid-August 2011, the ATO also implemented a number of other initiatives to improve the management of ITRIP cases. These initiatives included:
- implementation of a process enabling tax agents to respond in bulk to ATO enquiries on multiple cases resulting in increased volumes of correspondence to which the ATO was unable to respond in a timely manner which in turn led to tax agent complaints;101
- updating of ATO procedures to limit the instances of ATO officer-generated correspondence only to those cases in which a response had been received from the taxpayer, however, the absence of finalisation letters and reliance on notices of assessments alone generated some concern for tax agents;102 and
- the use of default assessments for cases in which the ATO identified a high likelihood of non-response from taxpayers (the ATO's use of default assessments is discussed further in Chapter 6).103
3.30 As a result of the above events and delayed ATO response, taxpayers and tax agents were subject to a number of adverse impacts.
Impact on taxpayers
3.31 Submissions to the IGT outlined a number of impacts on taxpayers arising from the ITRIP, the most significant of which is the anxiety for taxpayers caused by the belief that the ATO considers them fraudulent, dishonest or negligent as a result of their returns being held.
3.32 These concerns arose in part because of the uncertainty regarding reasons why tax returns were held for long periods of time. Moreover, they were exacerbated by the ATO's public communications on the issue which emphasised fraud over inadvertence through the use of such phrases as 'fraudulent and overclaimed refunds.'
3.33 The 'fraudulent and overclaimed refunds' wording was used extensively in 2011-12 in the ATO's weekly progress reports for income tax lodgement processing104 which were published online, in media releases105 and provided in ATO consultative forums.106
3.34 The ATO has also received informal feedback from tax agents about the negative connotations associated with the ATO's use of this phrasing and the impact this can have on both taxpayers and their agents.107
3.35 The ATO has, since the publication of its Compliance Program 2012-13 in July 2012, moved away from using the 'fraudulent and overclaimed refunds' phrase. Instead, the ATO has adopted terminology which shifted the focus from fraud to potentially incorrect.108 The IGT observes, however, that in a weekly Tax Time processing report in late 2012, the 'fraudulent or overclaimed refund' terminology was still used.109 The ATO advises that this usage was inadvertent and was not reflective of other publications at the time.
3.36 The ATO has advised the IGT that from 1 July 2013, it has adopted the phrase 'potentially overstated or possibly fraudulent claims' in relation to risks it seeks to identify and treat under the ITRIP. The use of new phrasing is intended to remove the emphasis on the fraud aspect of the ITRIP work and the ATO considers this will assist to minimise the anxiety for affected taxpayers.
3.37 In addition to the above, submissions to the IGT also raised a number of other impacts on taxpayers arising out of the ITRIP. These include:
- the creation of cash flow problems for taxpayers who have earmarked refunds for a specific intended purpose and the associated lost opportunity which is not always appropriately compensated by payment of interest;
- increased compliance costs may be incurred where, owing to a lack of clarity in the ATO's communications, taxpayers have engaged in gathering significant documentation to address perceived ATO concerns which were not otherwise required (the clarity and sufficiency of the ATO's communication and guidance to taxpayers and tax agents is discussed in Chapter 5);
- taxpayers opting to pay the ATO's adjusted amounts even though they considered them to be incorrect because taxpayers felt that the time and cost of challenging the adjustment would be excessive; and
- ongoing concern of a re-occurrence of extended delays experienced in 2011-12 in future iterations of ITRIP.
Impact on tax agents
3.38 The ITRIP also had adverse impacts on tax agents. According to submissions received by the IGT these included:
- time and lost billable hours in following up with the ATO, lodging complaints and taking action to have returns processed;
- professional impacts such as damage to the tax agent's personal reputation and brand or, where relevant, the brand of their firm. Where the delay is inadequately explained and the ATO has not officially communicated the reasons for delay, this can be corrosive to tax agent and taxpayer client relationships and clients abandoning agents due to the creation of an unfair perception; and
- personal embarrassment, stress and frustration in dealing with the ATO and addressing taxpayers' concerns that the agent has acted improperly or fraudulently.
3.39 The IGT observed a similar tax agent-taxpayer dynamic in his review into the ATO's Change Program. In that report, the IGT noted:110
Tax practitioners argued that a combination of the ATO's delays and communication had damaged their reputation with many of their clients. This was because they were of the view that the ATO communications appeared to imply that the tax practitioner was the cause of the delays and errors.
3.40 The efficient operation of the ITRIP, as with any large scale compliance project, involves a number of factors, including:
- planned resourcing based on appropriate pre-testing and pilots;
- the number of cases which those resources can complete within a reasonable timeframe; and
- the parameters for case selection.
3.41 Central to this paradigm is the ATO's responsiveness to changes in the three factors listed above.
3.42 In the case of 2011-12's Tax Time, the ATO made modifications and refinements to its ITRIP models which resulted in an unexpected increased case load. It could be argued that this increase in numbers may have been predicted if appropriate sample testing was carried out before the above modifications and refinements were widely implemented.
3.43 The IGT notes that the ATO did undertake sample testing of the new expert business rules, however, there were anomalies in the application of the results of this testing. These anomalies related to the education tax refund and spouse offset rules and led to the number of returns ultimately stopped by these business rules in 2011-12 being 153 per cent and 247 per cent of expected volumes, respectively.111
3.44 In respect of the education tax refund, the ATO advised that the difference between estimated and actual numbers of returns held by the ITRIP is attributable to changed claim behaviour which was not anticipated during sample testing. The ATO attributes the spouse offset anomaly to human error regarding sample figure inputs.112
3.45 Notwithstanding this, the IGT recognises that the ATO's effective monitoring of case levels in 2011-12 enabled it to detect the increased workload early in August 2011. However, despite its early awareness of the increasing workload, there was considerable delay of a number of months before the ATO implemented some initiatives to mitigate the impact on taxpayers and their agents.
3.46 When faced with an unforeseen substantial increase in workload, prompt remedial action needs to be taken. This could be done by either reducing the case load, increasing resourcing or by conducting verification of lower risk cases after refunds are issued. Some of this delayed implementation may be symptomatic of the multiple levels of governance associated with the ITRIP which were discussed in Chapter 1. A streamlined and consolidated governance arrangement may have assisted in a more timely implementation of initiatives to mitigate the adverse impacts on taxpayers and tax agents.
The IGT recommends that, whilst maintaining robust governance processes with respect to initiatives such as the ITRIP, the ATO should consider more streamlined governance arrangements, particularly in the early stages of the initiative, to facilitate a timely resolution of issues that might arise and to minimise uncertainties, duplications and inefficiencies.
Improvements made by the ATO in 2012-13 and planned for future years
3.47 One of the learnings from the 2011-12 ITRIP experience is the need for the ATO to better predict potential taxpayer and tax agent impacts when changing risk parameters, as well as ensuring quick and effective remedial action where unexpected events occur. The IGT notes that as a result of this experience, the ATO is seeking to implement a number of changes to its management of the ITRIP.113
3.48 At its Individual Taxpayers Advisory Forum in May 2012, the ATO noted:114
Due to an increase in the number of held returns in 2011-12, there have been delays issuing some legitimate refunds. This led to concerns being raised by both taxpayers and tax agents. The ATO is consulting with the community and addressing these concerns through a range of consultation forums and intermediaries.
3.49 Furthermore, the ATO has indicated, in information provided to the IGT, that it is seeking to improve the management of the ITRIP through undertaking a comprehensive review and re-design of the pre-issue compliance environment. Some key improvements identified by the ATO include:115
- integrating the HRR program into the ITRIP, including implementing improvements to rules to reduce the number of low risk returns stopped and subsequently released without adjustment;
- revising and user-testing the suite of letters notifying taxpayers and tax agents that a refund is being held and providing more information as to why it is held;
- adopting a differentiated approach for tax agents with significant numbers of refunds held;
- making greater use of third party data to cross check claims prior to reviews commencing;
- more closely monitoring numbers of refunds stopped early in Tax Time and developing contingencies for timely implementation of strategies for dealing with higher than expected refunds detected;
- improving explanation of decisions made, including reasons for decision where an adjustment has been made;
- maintaining a flexible workforce to manage peak volumes;
- further automation of the ATO's use of the default assessment process. This process is discussed in detail in Chapter 6;
- improving strategies for dealing with audit/objection workloads in a more timely manner;
- improving information and communication to the community about income tax refund compliance activity and how it may affect the issue of assessments both proactively through regular Tax Time updates and through increased information on ato.gov.au and in call centre scripting;
- providing taxpayers with early and ongoing communication on the progress of their assessment.
- refining the approach to information requests and allowing taxpayers and tax agents a reasonable time to provide supporting documentation (including extensions of time where appropriate); and
- providing written reasons for decisions where an adjustment has been made and, when requested, providing more detailed information on any decision made to adjust the return lodged by a taxpayer.
3.50 The ATO has provided information to the IGT demonstrating its commencement or implementation of the above initiatives in 2012-13. The IGT notes that while these have been commenced, not all have been completed. Some improvements such as those relating to communication and information gathering are ongoing through ATO evaluation and stakeholder feedback.
3.51 In relation to initiatives rolled out during 2012-13, firstly, the ATO implemented the use of overtime and increased staff levels earlier in Tax Time to ensure that held cases were actioned and released efficiently. This is shown in Table 12, below, which illustrates the increasing staff levels in November, December and January as well as high levels of overtime use from as early as August. The lower case loads and increased staffing levels led to significantly improved timeframes and reduced ATO complaint levels from about 7,381 in 2011-12 to 1,369 in 2012-13 (year to date), representing a decrease of more than 80 per cent.
|Income tax returns
stopped by the ITRIP
|Budget FTE/month||Actual FTE/month||Overtime hours||Labour hire FTE|
3.52 Secondly, the ATO made greater use of public announcements to update the community about its weekly progress in processing income tax returns. It also engaged with tax agents directly through the use of monthly emails, site visits and a tailored approach for those tax agents with the highest numbers of clients with income tax returns held for review.
3.53 Thirdly, the ATO also updated its suite of ITRIP correspondence following user-testing and feedback to remove uncertainty and provide greater clarity of the ITRIP process and any actions the taxpayer needs to take and the specific reasons for adjustments being made to taxpayers' income tax returns.116
3.54 Fourthly, the ATO has also sought to improve and streamline the complaints process and is currently piloting the use of 'administrative reversals' to efficiently reverse any initial ATO tax return adjustments in a timely and cost-effective manner where taxpayers provide further information to support their claims. Such a process affords taxpayers, and the ATO as administrator, a cheaper and easier alternative to disputing ATO adjustments than the more formal objection and litigation processes. The administrative reversals pilot is discussed further in Chapter 6.
3.55 The IGT observes that many of the ATO's improvement initiatives are largely aimed at addressing concerns such as those raised in stakeholder submissions to this review. However, as acknowledged in Chapter 1, while submissions have noted a generally improved ITRIP experience in 2012-13, certain areas have been identified as requiring further improvements. The remainder of this report will examine these areas. In doing so, it will be important to discuss what has occurred historically to provide appropriate context and determine what further improvements are necessary.
75 Above n 43, p. 4.
76 ATO, Communication with the IGT, 14 December 2012.
77 ATO, 'Income Tax Refund Compliance - High Level Summary' (4 May 2012), internal ATO document.
78 ATO, 'Individuals Compliance and Data Management, Stream Plan 2011-12' (September 2011), p. 10.
79 Above n 70; Above n 14, p. 5.
82 Above n 70.
83 See for example: ATO, 'ATO warns: honesty is best policy when claiming your tax refund this year', Media Release, 3 August 2011.
85 Above n 3, p. 9.
86 ATO, communication with the IGT, 31 May 2013.
87 ATO, Briefing to Second Commissioners on the ITRIP (14 September 2011), internal ATO office minute.
88 Above n 14.
92 ATO, communication with the IGT, 12 July 2013.
94 Above n 14, p. 2.
95 Above n 86.
97 Above n 70; Above n 14.
98 ATO, Communication with the IGT, 28 February 2013.
99 Above n 70; Above n 14.
100 Above n 72.
101 These visits took place between August and October 2011 and again in March 2012. See above n 92.
104 Above n 84.
105 Above n 83; ATO, 'ATO continues to shine spotlight on tax cheats', Media Release, 1 September 2011.
106 ATO, ATO Tax Practitioners Forum, Minutes (August 2011), item 6.
107 Above n 57, p. 5.
108 ATO, Compliance Program 2012-13, above n 2, p. 19; ATO, 'Take care what you declare, Media release', 19 September 2012; ATO, ATO Tax Practitioners Forum, Minutes (November 2012), item 4.
110 Above n 5, p. 76.
111 Above n 86, p. 2.
113 Above n 70; Above n 14.
114 ATO, Individual Taxpayers Advisory Forum, Minutes, 22 May 2012, item 6.
115 Above n 70; Above n 14, p. 5.
116 Above n 76.