Purpose of this document
The Inspector-General of Taxation (IGT) is seeking your submissions on his review into the Australian Taxation Office's (ATO) use of Early and Alternative Dispute Resolution (EDR and ADR, respectively). This review is listed on the IGT work program that was released on 4 April 2011.
This document outlines the background to the review, followed by the formal terms of reference and the submission guidelines.
In conducting compliance verification activities, such as reviews and audits, the ATO and taxpayers may disagree on a range of matters, including views of the law, relevance of facts and evidence and the application of law to the facts. Under Part IVC of the Taxation Administration Act 1953, the law provides taxpayers with a right of applying for internal review of certain ATO decisions (an objection) and a right of appeal to the courts.
Tax litigation is, therefore, sometimes unavoidable. Despite this, it is increasingly recognised as a costly and time-consuming process attended by uncertainty and mistrust. As taxpayers and administrators look to build and maintain strong working relationships, reduce costs and streamline processes for compliance and enforcement, both are realising the need for, and the benefits of, alternative approaches to dispute resolution1
The ATO considers that a fair and timely system for resolving disputes with taxpayers is pivotal to establishing confidence in the administration of the tax system. It is preferable to identify areas of dispute as close to the original decisions as possible and try to resolve them at that point.2 Both EDR and ADR can provide means to resolving disputes in a manner that is less costly and more timely than that under the Part IVC process.
ADR encompasses a variety of methods which may be used to resolve legal disputes other than the traditional method of referring the matter to a Court or Tribunal for determination.3 Common examples of ADR include settlement negotiations, mediation, conciliation and arbitration. Other examples include conferences, case appraisals and neutral evaluations, all of which are often utilised by the Administrative Appeals Tribunal.
EDR contemplates preventative intervention to resolve disputes early, effectively and legitimately. It aims primarily to avoid unnecessary disputes and, where this is not possible, to reduce both the frequency and severity of disputes.4 An example of this may be a conference between the taxpayer and the ATO to clarify facts which may be relied upon for the purposes of an amended assessment.
EDR and ADR are not mutually exclusive and may often overlap. As defined above, ADR generally refers to dispute resolution techniques employed close to, or during, the litigation process whereas EDR refers to processes which are employed prior to litigation being contemplated.
In recent years, the use of EDR and ADR has gained momentum and support from the judiciary,5 government6 and practitioners.7 It has been adopted in various forms in the United Kingdom,8 the United States9 and New Zealand,10 amongst others, in the administration of those respective taxation regimes.
The ATO's Law Administration Practice Statement PS LA 2007/23 Alternative Dispute Resolution in ATO Disputes and Litigation requires that 'officers playing a role in the management of ATO disputes particularly those in litigation must consider whether it would be appropriate to participate in some form of ADR to attempt to resolve the dispute'11 and provides further guidance as to those matters which the ATO considers may be suitable for ADR. Similarly, the ATO's Code of Settlement Practice (the Code) provides further guidance on the settlement of tax disputes and the use of ADR.12
The current taxation legislative regime does not impose any mandatory obligation on the ATO to consider and participate in EDR and ADR. However, other policies and laws do impose such an obligation. These include:
- the Model Litigant Policy, which binds all agencies (including the ATO) under the Financial Management and Accountability Act 1997, requires that agencies endeavour 'to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate';13 and
- the Civil Dispute Resolution Act 2011, which comes into effect on 1 August 2011, will require applicants who institute certain civil proceedings in the Federal Court or Federal Magistrates Court (including proceedings concerning taxation disputes)14 to file a 'genuine steps statement' detailing steps taken to resolve the dispute prior to commencing proceedings, or providing reasons as to why no such steps had been taken.15 The respondent must file a 'genuine steps statement' in response indicating whether it agrees with the applicant's statement and if not, the reasons for the disagreement.16
Following the IGT's reviews into Aspects of the Tax Office's Settlement of Active Compliance Activities17 and The Underlying Causes and the Management of Objections to Tax Office Decisions,18 the ATO has embarked on a program of work to improve its ability to resolve disputes at an earlier point in time.
During the consultation on the current IGT work program, external stakeholders expressed general support for the ATO's use of EDR and ADR but noted concerns that:
- the ATO utilises ADR sparingly and, as a consequence, foregoes opportunities to quickly and cost-effectively resolve disputes without the need for litigation;
- the ATO does not currently make sufficient use of EDR techniques in order to narrow and address issues in dispute as they arise during the compliance verification process;
- where the ATO has been willing to negotiate, its representatives were sometimes insufficiently skilled and/or lacked appropriate authority to progress the negotiations to a meaningful and productive end; and
- there is room for improvement in the way that both the ATO and the taxpayers approach and engage in EDR and ADR.
It is also important to note the ATO has statutory obligations which prevent it from settling liabilities in the same manner as private parties. There is a perception and, on one reading of the Code, a general rule that the Commissioner of Taxation (the Commissioner) will not enter into settlements where the outcome would be contrary to the ATO's established view of the law. However, when read as a whole, the Code does seek to provide a balance between this general rule (to minimise the risk of treating tax liabilities as negotiable debts) and scope for the ATO to consider, on a case-by-case basis, whether primary tax may be discounted having regard to litigation risk, particular facts and evidence and the application of the law to the facts warranting settlement.
Additionally, submissions to the IGT have asked whether the ATO could do more to embrace the philosophy of timely and cost-effective dispute resolution with ADR and EDR being the adopted norm and resorting to litigation only where the dispute has impacts wider than the interests of the parties in dispute.
The terms of reference for this review is set out below followed by submission guidelines to assist you in preparing your submission.
Terms of reference
In accordance with subsection 8(1) of the Inspector-General of Taxation Act 2003 (IGT Act 2003), the IGT conducts the following review on his own initiative.
The Commissioner has also requested that the IGT undertake this review pursuant to paragraph 8(3)(b) of the IGT Act 2003.
The IGT will identify the instances and matters in which the use of EDR and ADR would be most desirable, and will review the extent to which the ATO currently utilises EDR and ADR in that context.
The IGT will also look to identify opportunities for improvement.
The review will have a particular focus on:
- the extent to which the ATO identifies matters in which the use of EDR or ADR may be desirable and those matters in which it may not be desirable;
- the extent to which the ATO engages, either of its own volition or at the request of a taxpayer, in EDR and ADR to resolve or narrow issues in dispute;
- the accessibility of EDR or ADR to a taxpayer seeking to resolve a dispute with the ATO; and
- the quality of the ATO's engagement and whether ATO representatives demonstrate a focused attention on the holistic resolution of issues in contention.
The extent to which the ATO is sufficiently skilled to identify opportunities for the use of EDR and ADR, to engage in EDR and ADR and to appropriately manage and resolve disputes without resort to litigation, including whether the ATO:
- utilises the most appropriate EDR or ADR method, having regard to timeliness, costs involved, the taxpayer and the issue(s) in question;
- engages the most appropriate facilitator to assist with resolving the dispute, having regard to the selected EDR/ADR technique, timeliness, costs involved, the taxpayer and the issue(s) in question; and
- has sufficient access to the skills and expertise to effectively carry out EDR and ADR techniques in disputes with taxpayers and their representatives.
Whether ATO officers engaging in EDR and ADR are the relevant decision-makers for the purpose of the dispute and, if not, the extent to which those ATO officers are invested with sufficient authority to settle disputes with taxpayers.
Whether there are sufficiently expedited processes in place for ATO representatives in EDR or ADR to obtain, or supplement previously granted, authority to settle and whether these processes are clearly understood by relevant ATO officers.
Whether the use of EDR and ADR techniques may be applied to resolve or narrow disputes earlier in the ATO's compliance verification/objection process.
The IGT may also examine any other relevant concerns raised or potential improvements.
The IGT welcomes your engagement in the consultation process on this review. To facilitate this action, the IGT will:
- post the terms of reference on the IGT website and call for submissions through such channels as print media;
- seek submissions on this review from members of the public, or from particular associations, industry bodies or organisations; and
- request relevant information and documents from the ATO.
The IGT invites you to provide written submissions to assist with this review. Your submission should address the terms of reference set out above and the issues and questions outlined in the submission guidelines below. It is not expected that each submission will necessarily address all of the issues and questions raised.
The closing date for submissions is 26 August 2011. Submissions can be sent by:
Inspector-General of Taxation
GPO Box 551
SYDNEY NSW 2001
fax to: 02 8239 2100
email to: email@example.com
Submissions provided to the IGT are dealt with in strict confidence (unless you specify otherwise). This means that the identity of the taxpayer and/or of the adviser and any identifying information contained in such submissions will not be made available to any other person, including the ATO. Sections 23, 26 and 37 of the IGT Act 2003 safeguard the confidentiality and secrecy of such information-for example, generally the IGT cannot disclose the information as a result of an FOI request or as a result of a court order. Furthermore, if such information is the subject of legal professional privilege, disclosure of that information to the IGT is protected and will not result in a waiver of that privilege.
We envisage that, broadly, your submission may be divided into two parts:
- a detailed account of your experience with EDR or ADR and the ATO; and
- recommendations to improve the ATO's use of EDR and ADR and how this would benefit all parties involved.
Your experience with EDR/ADR and the ATO
In the first part of your submission, you should provide detailed accounts of experiences in seeking to resolve disputes with the ATO through alternative means other than litigation. In doing so, you may wish to provide details of:
Prior to seeking EDR or ADR
- the dispute(s) you sought to resolve;
- whether the ATO approached you to offer any alternatives or options to resolve the dispute(s), and if so, the details of these processes;
- if the ATO did not initiate any EDR or ADR process, the steps you took to resolve the dispute(s) with the ATO, including whether you sought to engage the ATO in EDR or ADR;
- the response from the ATO in relation to steps you took, including whether the ATO agreed to any requested formal or informal EDR or ADR, and any other action on the ATO's part;
- if you engaged in an EDR or ADR process with the ATO, at what point did this occur and what EDR or ADR process was utilised;
- whether the EDR or ADR process was formalised, at the outset, by way of a mediation agreement, or other formal document outlining the agreed terms on which the EDR or ADR would be conducted;
- if the ATO did not agree to engage in EDR or ADR, the reasons which were provided to you for this refusal (if any) and any action you took to progress the matter further, including whether you sought to engage with officers at a more senior level and the accessibility to these senior officers;
During the EDR or ADR process
- the number of people who attended on your behalf and on behalf of the ATO, and their respective roles and qualifications in the process;
- whether at the EDR or ADR, all of the issues in contention were brought to light and discussed;
- whether you felt the ATO was sufficiently prepared to engage in EDR and ADR, and if its representatives demonstrated a clear and precise understanding of your position, the facts and evidence which support your position and the issues in contention;
- the facilitator who was engaged and whether in your view, that facilitator was best placed to assist in progressing the matter to resolution, having regard to the EDR or ADR technique which was employed;
- whether the dispute(s) was(were) resolved either in full or in part, or the issues in contention narrowed, and the factors which you feel contributed to this, including but not limited to the behaviours and skills of the ATO representatives;
After the EDR or ADR process
- if the dispute(s) was(were) resolved, or the issues in contention were narrowed, whether the agreed matters were formalised in a deed of settlement, heads of agreement or similar documentation;
- if the dispute(s) was(were) resolved, what aspects of the dispute(s) were the ATO willing to concede (for example, primary tax, interest or penalties) and the reasons given;
- how long the dispute resolution process took, from initiation to finalisation;
- if the dispute(s) was(were) not resolved, provide reasons (for example, the parties were unable to agree on a technical point requiring judicial determination or the personalities attending the ADR for either party);
- if the dispute(s) was(were) not resolved, and the matter proceeded to litigation, whether you felt advantaged or disadvantaged in litigation by reason of the matters which had been disclosed during the course of the EDR or ADR;
- the impact of, and costs involved in, seeking to resolve the dispute(s) before progressing the matter to litigation;
- the degree to which these costs and impacts were minimised, or could have been minimised, by you or the ATO; and
- any other experience that you consider relevant.
Specific examples arising from your experiences would greatly assist us to both identify and examine potential systemic issues more efficiently and effectively. The accounts of your experiences should take into consideration the terms of reference above.
For these examples, it would be useful to provide a time line of events outlining your key interactions with the ATO including any correspondence, telephone communications, information requests and responses from the ATO (if applicable).
It is important to provide details of specific factors, including the ATO practices and behaviours that, in your view, delayed resolution of the dispute(s) and resulted in increased costs and impact to your business.
The IGT also seeks examples of positive factors in the ATO's use of dispute resolution techniques which have assisted you to address disputes in a timely and effective manner, and which have minimised cost and disruption to you.
Opportunities for improvement
In the second part of your submission, we invite you to identify opportunities to improve the ATO's use of EDR and ADR. Your submission may outline alternative frameworks, actions, practices or behaviours which, in your view, could minimise any adverse or detrimental impacts arising from the current system and its operation.
At the outset, based on your experiences in negotiating with the ATO, you should consider whether there is currently an appropriate balance between the need to minimise the risk of treating tax as a negotiable debt and allowing the ATO some room to settle appropriate matters. If not, where do you consider that balance should lie?
Comments would also be welcome on whether the Commissioner should be given broader powers to settle disputes and, if so, how should this be effected. One possibility would be to amend or clarify the scope of section 8 of the Income Tax Assessment Act 1936 (and corresponding sections in other relevant acts).
In providing specific comments on EDR and ADR, you may wish to consider:
- at what point in the existing ATO processes should it consider whether EDR or ADR should be employed. The different points at which EDR or ADR may be utilised include:
- Before the finalisation stages of audit;
- Position paper issued by the ATO;
- Notice of Amended Assessment issued by the ATO;
- Objection lodged;
- Objection decision issued by the ATO;
- Appeal filed in the AAT or Federal Court;
- Hearing of the Appeal;
- what factors should be considered when determining whether a matter is suitable for EDR or ADR and, in particular, what types of cases lend themselves to EDR or ADR (for example, disputes involving valuations) and what types do not (for example, cases involving elements of fraud);
- who, in your view, and having regard to the timing and nature of the disputes and the costs involved, would be most appropriate to assist in resolving disputes with the ATO. Possible choices of facilitators include:
- barristers who practice in dispute resolution;
- solicitors with specialist dispute resolution training;
- retired judges;
- people not legally trained, but who are skilled and accredited negotiators/mediators;
- whether the facilitator should be a trained ATO officer who is not involved in the dispute(s) in question or whether the facilitator should be an independent third party such as those listed above;
- whether ADR is more effective when conducted under direction from a Court or Tribunal; and
- whether matters should only be litigated where judicial determination is necessary to clarify the law and the determination would have an impact on the broader community.
You may wish to include experiences you have had in the resolution of disputes with other government departments, overseas revenue authorities or other parties not connected with the Commonwealth of Australia.
Lastly, your submission may wish to address any other specific points that you consider important in the context of the ATO's use of either EDR or ADR.
1 Ernst & Young, Tax Administration without Borders, viewed on 12 July 2011, p.3; Organisation for Economic Co-operation and Development, Study into the role of Tax Intermediaries, viewed on 13 July 2011, p.75.
3 National Alternative Dispute Resolution Advisory Committee (NADRAC) website, viewed on 27 June 2011.
5 Speech: 'The Future of Litigation: Dispute Resolution in Jurassic Park?' delivered by the Hon. Robert French, Chief Justice of the High Court of Australia at the Bar Association of Queensland Annual Conference on 7 March 2009, viewed on 27 June 2011.
6 Attorney-General's Department, Encouraging Access to Justice through Alternative Dispute Resolution, Media Release 29 March 2009, viewed on 27 June 2011; Civil Dispute Resolution Act 2011 (Cth); Attorney-General's Department, Legal Services Directions 2005, viewed on 30 June 2011.
7 Law Council of Australia, 'Submission to the Senate Legal and Constitutional Affairs Committee regarding the Civil Dispute Resolution Bill 2010', viewed on 28 June 2011, p. 3.
11 Australian Taxation Office, Law Administration Practice Statement PS LA 2007/23 Alternative Dispute Resolution in ATO Disputes and Litigation, viewed on 28 June 2011, para. 8.
13 Attorney-General's Department, above n. 6, Appendix B sub-paragraph 2(d).
14 Part 4 of the Act outlines those proceedings which are excluded from the operation of the Act.
15 Section 6.
16 Section 7.
17 Inspector-General of Taxation, Review into aspects of the Tax Office's settlement of active compliance activities, viewed on 30 June 2011, p. 13.
18 Inspector-General of Taxation, Review into the underlying causes and the management of objections to Tax Office decisions, viewed on 30 June 2011.