5.1 An important focus of this review was to examine the main drivers or causes of objections, each displaying different taxpayer behaviour and risk to the Tax Office. This chapter sets out the Inspector-General's findings and discusses stakeholder views on aspects of the Tax Office's compliance activity actions.
5.2 The Inspector-General identified four main causes of objections:
- the objection process being used to effect amendments with no prior Tax Office decision or action;
- the objections process being used to challenge a Tax Office decision arising from an audit, default assessment, private binding ruling or where the Commissioner has refused or failed to make a decision;
- taxpayers' failure to properly respond to Tax Office requests for further information, leading to the Tax Office issuing an amended assessment; and
- the Tax Office's approach during audit.
No amended assessment or real taxpayer dispute with a Tax Office-initiated action or decision
5.3 Taxpayers do not only lodge objections following Tax Office audit activity and the subsequent issuing of an amended or default assessment. Quite often, taxpayers lodge objections with no prior Tax Office-initiated action or decision. The Inspector-General has identified a number of sub-categories here including taxpayers seeking to self amend their own self assessed return because they disagree with the Tax Office view, where taxpayers display a preference to seek an amendment to their assessment through the objection process or where taxpayers are out-of-time to lodge an amendment.
Objection challenging Tax Office view, but not arising from Tax Office active compliance activities
5.4 On some occasions, taxpayers will lodge an objection to a notice of assessment with the purpose of challenging the Tax Office view as expressed in a ruling, determination or other interpretative advice. Initially, a taxpayer lodges a tax return that accords with the Tax Office view and then seeks to challenge that view. By adopting this course of action a taxpayer minimises their exposure to tax shortfall penalties and, in the event that the Tax Office disagrees with their objection, has an immediate right of review to the AAT or appeal to the Federal Court.
5.5 Another option available for taxpayers would be to seek a private binding ruling from the Tax Office. Where taxpayers disagree with the Tax Office's ruling, then they would have to lodge an objection, which is an additional step in the resolution of the dispute, resulting in additional costs and time delay. From a compliance model perspective, this may demonstrate a desire on the part of taxpayers and their representatives to 'do the right thing' and be upfront with the Tax Office.
5.6 From a Tax Office perspective, such taxpayers could be considered as compliant, as they are voluntarily bringing the issue to the Tax Office's attention without the need for audit. However, the ability of taxpayers and their agents to lodge objections without any prior Tax Office audit activity can have a significant, and possibly detrimental, impact on tax administration. In such instances, the objection will usually be the first time the Tax Office becomes aware of the issue. Unlike taxpayers that have been subject to an audit or risk review, the Tax Office will not have had an opportunity to request relevant information and evidence in order to determine the relevant facts. As was shown in the Tax Office's cross-line taskforce report, such objections often require further information and, in many instances, the objection takes the form of a quasi-audit (requests for further information, meetings with the taxpayer and their representative, requests for information to third persons). This often requires a significant allocation of limited resources, given the smaller number of objection officers than auditors with the potential for time delays. Added to this are the time constraints imposed by the Taxpayers' Charter standards and section 14ZYA of the TAA.
Amendments to taxpayers' assessments lodged as objections
5.7 These objections arise where taxpayers are within time to lodge an amendment to a notice of assessment but nevertheless decide to lodge an objection. The Tax Office has no discretion not to treat them as objections and not to follow the Part IVC process if taxpayers lodge them as an objection. Through discussions with stakeholders and tax practitioners a number of drivers have been identified for this practice.
5.8 First, the Inspector-General also notes that currently requests for amendments can only be lodged through the Tax Office's Electronic Lodgement Service (ELS), while objections can be lodged through the Tax Agent Portal (TAP). Tax agents have said that they use the objections channel where there is no real dispute because they cannot use the TAP for amendments. They also say that using the objections route via the TAP gives them a Tax Office contact point for the issue which is otherwise not available. The Tax Office advises that system changes would be required to allow tax agents to use the TAP to lodge amendment requests. These changes would need to be considered in terms of other priorities designed to improve service to taxpayers.
5.9 The Tax Office's taskforce report found that of the sampled cases only 2 per cent of objections were lodged via the TAP. Overall, nearly 81 per cent of objections were lodged by letter and 15 per cent by facsimile. The Tax Office advises that, although the TAP does not allow tax agents to lodge amendment requests, the ELS allows them a quick and effective medium to effect an amendment.
5.10 Second, tax agents say that using the objection pathway gives them a Tax Office contact point for the issue that is otherwise not available if the tax agent lodges an amendment request. Finally, tax practitioners advise that by lodging an objection, and in the event that the Tax Office disallows the objection, then they have immediate recourse to the AAT or Federal Court.
5.11 From a taxpayer perspective, seeking to amend an assessment through the objection process could result in higher compliance costs through the need to lodge an objection. The Tax Office's taskforce report found that approximately 62 per cent of objections were lodged by tax agents and tax professionals. For GST and MEI — Micro the majority of objections were lodged by tax agents or tax professionals while for MEI — Individuals and Superannuation there was an equal split between objections lodged by taxpayers and tax agents or professionals.
5.12 There are specific requirements for an objection — it must be in the approved form and it must state fully and in detail the grounds of objection to be relied on by the taxpayer. Also, the lodgement of an objection may entail additional liaison with the Tax Office to determine the objection and any additional time required to finalise the objection (56 days versus 28 days for electronic amendments).
5.13 This practice also imposes a burden on the Tax Office as it is required to deal with the request as an objection. By way of law, the Tax Office must consider taxpayers' objections and must serve taxpayers, by post or otherwise, with written notice of the decision. The Tax Office's work practices require objection officers to prepare reasons for decision for all objections, even where the matter is straightforward and the objection is to be allowed. In addition, such an objection decision would need to be signed off by the objection officer's manager and the case has to be recorded on various management information systems.
5.14 Currently, where taxpayers are out of time to request an amendment, they can still effect an amendment by lodging a request for an extension of time to lodge an objection together with an objection. This is treated as an objection, but by its nature it is very different from that which arises from Tax Office audit activity. There is no pre-existing dispute between the Tax Office and the taxpayer regarding the facts, evidence or tax laws. Rather, the driver of such objections is taxpayers seeking to correct their own assessment but who are out of time to do so, pursuant to the amendment provisions. In some instances, such objections can transform into audit-like reviews, where there are multiple requests for further information, position papers and discussion between the Tax Office and taxpayers' representatives. Such objections also give rise to the same taxpayer and Tax Office burdens as described for amendments to taxpayers' assessments lodged as objections.
Review findings and observations
5.15 An analysis of information from the Tax Office's corporate case management system, information provided by the Tax Office and an examination of a representative sample of objection cases indicates that out-of-time objections represent a significant proportion of objections lodged by individuals and micro businesses.
5.16 Until fairly recently, neither the law nor the Tax Office has adequately differentiated the varying circumstances that taxpayers may lodge an objection in order to take into account different taxpayer behaviours, expectations and risk to revenue.
5.17 In addition, at the corporate level the Tax Office has not been able to differentiate and record the different source of objections (for example, objections lodged as a result of Tax Office action and those lodged without any previous Tax Office action), which has meant that it has been difficult to determine the true level of disputation in the tax system. This can lead to an inefficient allocation of resources with more experienced objection officers handling a large number of amendment requests that could potentially be resolved by more junior tax officers.
5.18 However, it has been possible for the Inspector-General to obtain some information at the business line level regarding the source of objections. This was because objections requiring decisions on extending the objection period are one class of cases captured by the MEI business line reports.
5.19 First, there was a 139 per cent increase in the number of extension of time objections being received by the MEI business line in the 2007-08 income year as compared with that of the previous year, rising from 1,354 to 2,891. Extension-of-time objections comprised just under one-third of all objections received by the MEI business line in 2007-08.
5.20 The Tax Office advises that this was due to an increasing number of taxpayers whose period of review had, for the 2004-05 income year, been reduced from four years to two years. In addition, nearly 80 per cent of the 'extension of time objections' were allowed in full with a further 4 per cent allowed in part and 11 per cent disallowed.
5.21 The Tax Office advises that for the 2004-05 income year onwards, the RoSA measures introduced a reduction in periods of review from four years to two years for most taxpayers within the individual's market and some within the micro market. These time limit changes have increased the number of applications for amendments to original self assessments that are out of time. Where a taxpayer is out of time to amend their assessment, their only recourse is to seek review through the formal objection process. These measures also saw, for income tax matters, an alignment of the period in which an amendment may be requested and the period that an objection must be lodged by. Prior to this, amendment and objection periods differed slightly, leading to some out-of-time amendments being treated as objections without a need for a request to extend the time to lodge.
5.22 Second, the Inspector-General found that in some business lines a significant proportion of objections did not arise from an audit or any other compliance activity. Rather, taxpayers' were seeking to use the objection mechanism to amend their return. Nearly all GST objections were audit-sourced. An examination of a sample of LBI cases found that 72 per cent of objections allowed in full were taxpayer requests for amendments lodged as objections where there was no prior active compliance activity. In contrast, approximately 76 per cent of objections disallowed were audit-sourced.
5.23 Table 5.1 shows the proportion of finalised objections that arose as a result of Tax Office audit action and those finalised without any previous Tax Office audit action within the MEI business line.
|Individuals — Audit||420||1,048||1,576|
|Individuals Audit (Information matching)
|Individuals Audit — Penalty/Interest only||651||225||397|
|Individuals — Amendment||220||472||366|
|Individuals — Non-audit||1,771||1,593||1,345|
|Individuals — Debt release||72||86||44|
|Individuals — Extension of time||1,792||1,366||1,132|
|Micro — Audit||-||-||370|
|Micro — Non-audit||-||-||886|
|Micro — Debt release||-||-||106|
5.24 Within the Individuals' segment, approximately 63 per cent of objections were from a non-audit source (amendments, release for debt, and extension of time) with only 34 per cent arising from some form of audit activity or risk review. Likewise, in the Micro segment approximately 27 per cent of objections arose from an audit with the remaining 73 per cent being non-audit sourced or release of debt cases.
5.25 This is consistent with the Tax Office's taskforce report which found that, within the Individuals and Micro segments, approximately 47 per cent and 44 per cent of objections respectively were from a non-audit source. The taskforce report also found that for the GST business line approximately 97 per cent of the sampled objections arose from audits.
Review findings and conclusions
5.26 The Inspector-General notes the comments in the Ralph Review and believes that there is a need to re-align the objection framework in a self assessment environment. First, an objection should be limited to a review of a Tax Office decision which adversely affects a taxpayer — namely, cases which arise from an audit or the Tax Office's refusal to amend a notice of assessment.
5.27 Second, the Inspector-General does not believe that the processing of a return and the issuing of a notice of assessment should constitute a decision for the purposes of the objection system. Unlike the previous assessing regime, where the Tax Office was required to technically scrutinise a taxpayer's income tax returns and make an assessment, in a self assessing environment the Tax Office accepts returns at face value, subject to post-assessment risk-based audit and other verification checks. The issuing of assessments is now a processing mechanism and it would be difficult to accept the proposition that this stage represents a Tax Office decision.
5.28 The Inspector-General believes that the common treatment of genuine (audit-sourced) and non-genuine (non-audit sourced) objections has been a constraining factor towards the objection process becoming a more efficient and effective internal review system. The treatment of amendments to assessments arising from taxpayer error as an objection, even where taxpayers are out of time to lodge such amendments, has increased taxpayer compliance costs, the Tax Office's administrative costs and the time taken to effect amendments. Taxpayers must incur the costs associated with the preparation and lodgement of an objection, together with the provision of any further information that is required by the Tax Office. Likewise, the Tax Office allocates more experienced tax officers to objection work, objections require more time to finalise with the need for written reasons for decision, managerial and technical sign-off and need to be recorded on the Tax Office's technical decision making system.
5.29 The Tax Office advises that while the law provides the Commissioner with a general power of administration, the principles of administrative law and statutory interpretation require the Commissioner to operate within the bounds of the powers conferred on him by Parliament and to use them to give effect to Parliament's intent as discerned by the application of those principles. The powers of general administration cannot be used to extend, confine or undermine Parliament's intentions or to justify a course of action that would otherwise be beyond the Commissioner's powers.
5.30 The law allows any request to change an assessment that is out of time to be dealt with as an objection, provided the Commissioner exercises his discretion to treat the late lodged objection as though lodged on time. The existence of this avenue to change the assessment, and the absence of any power to extend time for amendments, prevents the Commissioner's general administrative powers being used to allow an out-of-time amendment request in any way but where it can be treated as an objection and can be allowed to proceed out of time.
5.31 The Tax Office states that should a request for amendment be lodged out of time, it is Tax Office policy to advise the taxpayer that the request could be considered as an objection. However, as the period to lodge an objection has also expired, the taxpayer must seek the Commissioner's agreement to treat the objection as though lodged in time. Where reasonably arguable grounds for an objection exist and the requirements to be allowed out of time are met, or (within four years of the assessment) even if the requirements are not fully met there is no prejudice to the Commissioner, the agreement is provided and consideration of the objection occurs.
5.32 Section 170 of the ITAA 1936 does not provide the Commissioner with any power to extend the period in which a taxpayer may amend their tax return. The Inspector-General considers that the Commissioner's powers should be broaden to allow such an extension. This will maintain taxpayers' current rights to seek an amendment to correct an error or omission to their tax returns, while at the same time allowing for the objection process to be confined to genuine disputes.
The Government should consider improving the objection system established by Part IVC of the Taxation Administration Act by ensuring that the objections process can only be used for genuine disputes arising from amended assessments, default assessments, private binding rulings or where the Commissioner has failed or refused to make a decision in relation to a matter in dispute. All other requests, regardless of whether the taxpayer labels them as objections, should be treated as self amendment requests.
Taxpayers' rights should be preserved by allowing the Commissioner to extend the period in which a taxpayer may amend their tax return.
Tax Office response
5.33 This is a matter for Government to consider.
Genuine taxpayer dissatisfaction with a Tax Office-amended assessment
5.34 In this instance, the Tax Office and taxpayers are in genuine dispute. There are a range of issues that may cause taxpayers to lodge such an objection, including that:
- taxpayers disagree with the Tax Office's finding of facts or evidence in support of those facts;
- taxpayers disagree with the Tax Office's view as expressed in a ruling, determination or other interpretative advice;
- taxpayers disagree with the Tax Office's application of the law to the given facts; or
- the Tax Office has issued a default notice of assessment.
5.35 Where a dispute arises from an audit or risk review, the Tax Office has already had an opportunity to determine the relevant facts and request further information. The Tax Office has also had the opportunity to avail itself of its formal information-gathering powers to obtain the evidence that it believes is necessary to properly decide whether to issue an amended assessment. Moreover, both the Tax Office and taxpayers have had an opportunity to exchange their views on the law, facts and evidence. As part of the audit finalisation process, the Tax Office is required to provide taxpayers with draft reasons for decision prior to issuing an amended assessment.
5.36 In this instance, the objection should ideally represent an independent review of the auditor's determination of the facts, consideration of the evidence and application of the Tax Office view. However, information from the Tax Office's corporate case management system reveals that it is often necessary for further information to be requested or considered as part of the objection. This may be due to taxpayers providing further information together with the lodgement of the objection or the objection officer requesting further information from the taxpayer in the course of determining the objection. The Inspector-General found that the provision or request for further information at this stage was a significant determinant in the resolution of this class of objections. This was also confirmed by the Tax Office's taskforce report which found that approximately 73 per cent of audit-sourced objections were lodged with new information or evidence across all sampled business lines and that 52 per cent required the Tax Office to request further information after the lodgement of the objection.30
5.37 Where taxpayers disagree with the Tax Office view itself, as expressed in a ruling, determination or other interpretative advice, then the objection officer is not able to unilaterally change the Tax Office view. Rather, the objection officer, where they believe that the Tax Office view gives rise to an incorrect decision or unintended consequences, is required to escalate the issue. Apart from such circumstances, the objection officer is required to apply the Tax Office view as expressed in a ruling, determination or other interpretative advice, even though the basis for the taxpayer's objection is a disagreement with the Tax Office's expressed view.
5.38 From a Tax Office perspective, the fact that an audit has proceeded to objection means that there is a dispute on hand. The taxpayer has not accepted the Tax Office's audit decision and is exercising their right of independent review. Importantly, the dispute is Tax Office-initiated in the sense that the taxpayer was selected for an audit or risk review. The taxpayer could also be liable to tax shortfall penalties, shortfall interest and general interest charges.
Tax Office's compliance activity actions
5.39 Stakeholder submissions suggested a number of factors that put upward pressure on the number of taxpayers objecting to Tax Office decisions, including the Tax Office's approach during compliance activities, its identification of the facts, evidence, issues and the application of the law, and how the Tax Office ultimately communicates the issues and compliance decision to taxpayers.
Approach during compliance activities
5.40 Firstly, the Institute of Chartered Accountants in Australia (ICAA) noted that objections to Tax Office decisions arise where taxpayers disagree with a Tax Office decision and are unable to convince the Tax Office otherwise, prior to it issuing an amended assessment or other decision. It expressed the view that, due to the self assessment process, most objections arise as a result of Tax Office adjustments made following an audit action or negative decisions on private binding ruling applications.
5.41 The Taxation Institute of Australia (TIA) also noted that the issuing of an assessment was a key development in any taxation dispute and that by the time an amended assessment had been issued, the Tax Office had often taken a range of steps to investigate the matter. These steps include any of the following:
- an audit by the Tax Office of taxpayers' affairs generally or into a particular transaction;
- the Tax Office issuing a position paper to taxpayers outlining the Tax Office position and taxpayers providing a written response;
- the Tax Office seeking information and the production of documents by compulsory notices such as section 264 notices, or equivalent informal requests;
- escalation of matters within the Tax Office and consideration of the matter by specialist panels; and
- the Tax Office seeking advice from the Tax Counsel Network or external counsel.
5.42 The TIA submitted that the act of issuing an amended assessment by the Tax Office also has important ramifications:
- The assessment triggers a liability to pay the tax owing, which is often reduced to an immediate payment of 50 per cent of the amount owing, and a deferral of the remaining 50 per cent by agreement between the taxpayer and the Tax Office.
- It could signal that the Tax Office has decided on a course of litigation, subject to the taxpayer making a favourable offer to settle the matter.
5.43 The ICAA believed that the increase in the number of objections could be attributable to the increased audit activity. It indicated that since that time the Tax Office has progressively moved from post-assessment reviews to carrying out a large number of pre-assessment reviews. By doing this, the Tax Office is effectively bringing forward the period of dispute that, traditionally, would have arisen only after the relevant return was lodged.
5.44 In its submission, the Ombudsman's office stated that it received relatively few complaints about objections and audits that would suggest any significant problems 'upstream' of the objection. Notwithstanding this, the Ombudsman's office suggested that there were many taxpayer disputes that precede the assessment and objection process and arise at the audit stage. It submitted that:
… it is the Ombudsman's experience that it is not until the audit is complete that the dispute effectively 'crystallises'. In the absence of a disputed assessment it is sometimes difficult for taxpayers to effectively communicate why they disagree with the direction an audit appears to be taking. To this extent, the objection can be the most useful means for the taxpayer to clearly and effectively express his or her concerns with the Tax Office decision about the taxpayer's liability. Also, not until the dispute has crystallised that some taxpayers are prepared to provide the further information necessary to enable the Tax Office to make a more accurate assessment of the taxpayer's actual tax liability.
5.45 The Ombudsman believes that there is scope for the Tax Office to consider how it might better use audit processes to air issues of concern with affected taxpayers. For example, the Tax Office could sometimes use the audit process to better explain its position and clarify its interpretation, which may lead to resolution at an earlier stage. The Ombudsman concluded that, while there remained some scope for the Tax Office to prevent objections and litigation, that in a large part this depended on the attitude, motives and conduct of the taxpayer concerned, and often also that of their adviser.
5.46 The importance of approaches adopted during audit in minimising potential disputes was also highlighted by the Law Council in its submission to the Inspector-General's review into the Tax Office's management of litigation. The Law Council submitted that the acts or omissions in the audit process and the material compiled for position papers often had a significant bearing upon the identification of the essential nature of any dispute and thus upon the issues that are contested in the AAT and Federal Court. It noted that it was important that the Tax Office be focused in its information-gathering activities, collect information that can readily become admissible in a litigation context, and be obliged to state with clarity and precision the reasons for decisions taken prior to legal proceedings being instituted. Further, taxpayers should be afforded an adequate opportunity to be heard and respond to the Tax Office. The Law Council submitted that the Tax Office should implement rigorous document management and information-gathering procedures so as to bring about a 'cultural change' in the way it pursues audits and litigation, and that this would improve the whole audit-litigation process.
Review findings and conclusions
5.47 The Inspector-General agrees with the stakeholders' sentiments that the Tax Office's approach during compliance activities plays an important role in minimising disputes through objection and litigation. The Inspector-General agrees with the Law Council's comments that the acts or omissions in the audit process have a significant bearing upon the identification of the essential nature of any dispute and thus upon the issues that are later contested.
5.48 One step in improving the Tax Office's approach during compliance activities is to promote greater integration or alignment in the work practices and processes between the audit, objection and litigation stages of the dispute with continual feedback between each of these stages. By this the Inspector-General means that the audit work practices and processes should ensure that, where a dispute proceeds to objection, it can be handled in a just, timely and efficient manner in line with the Taxpayers' Charter standards. To allow this to happen, it is important that the Tax Office's pre-amended assessment work practices and processes support the role and objectives of internal review. This aligns with the Ralph Report, which noted the need for issues and processes to be considered on an integrated — that is, a 'whole-of-transaction' — basis, in order that the best possible administrative regime can be designed and implemented.
5.49 Greater integration of audit-objection-litigation processes is important for a number of reasons. First, as stakeholders noted, the approaches adopted at one stage of the dispute process, say at audit, have flow-on consequences to the other downstream processes, including objections.
5.50 Assessments or amended assessments issued to taxpayers to give effect to the Tax Office's views following an audit can have significant effects on taxpayers. The Ralph Review suggested that listed companies may be obliged to notify the stock exchange of the issue of the assessment requiring payment of a material amount of tax which could have an immediate effect on the company's share price.31 In the case of private companies and individuals engaged in business, the issuing of an amended assessment may cause lenders to business to call in securities or otherwise seek to recover amounts owing. The Ralph Review noted that the satisfactory resolution of the subsequent dispute offers little comfort for taxpayers faced with these potential impacts of an amended assessment.
5.51 Secondly, in Chapter 4 the Inspector-General observed that only 71 per cent of objections have met the completion standard over the last three years, which is considerably below the Tax Office's own service standard of 100 per cent.32 Furthermore, where there is a further information request, then over three-quarters of such cases fail the Taxpayers' Charter further information request standard. Both of these outcomes are partly attributable to the approaches adopted at the audit stage. For instance, the failure to obtain relevant and admissible evidence at the audit stage would have a serious impact on the conduct and timeliness of the dispute at objection and litigation.
5.52 Thirdly, the Inspector-General notes the recently revised arrangements for the management of tax cases in the Federal Court, which seek to promote the just and efficient determination of tax disputes in a timely manner. The Inspector-General believes that it is imperative that the Tax Office re-examine its audit-objection-litigation work practices and processes to ensure that they adequately support the Commissioner adhering to the requirements and timeframes set out in these new arrangements.
5.53 The Tax Office states that, in order to comply with the Federal Court Directions, it has made some immediate changes to work practices, including:
- the development of predictive models that identify taxpayers who are likely to appeal to the Federal Court;
- the establishment of formal contact points between business lines and the Legal Services Branch, when a potential Federal Court litigant is identified; and
- streamlined processes to ensure document delivery to Legal Services Branch within a timely manner after lodgement of an appeal.
5.54 The Inspector-General also notes the recent efforts by the Tax Office to develop a more concerted approach to its end-to-end dispute resolution system as part of its Objections Review Project. At this stage, improvement initiatives targeted at the original decision stage include the establishment of a dispute resolution network and the involvement of Legal Services staff prior to resolution, reinforcing the independence of review from the original decision maker and seeking to build tax officer skills in relationship management and negotiation. The Tax Office advises that it is also seeking to better understand how active compliance processes impact on objections and litigation workload and is working toward developing a dispute risk indicator.
Improvements in the identification of the facts, evidence, issues and the application of the law
5.55 In the course of both the previous management of litigation review and this review, stakeholders have made a number of specific recommendations to improve the end-to-end dispute resolution process. These suggestions came from taxpayer experience and the Inspector-General supports their general thrust and believes they warrant serious consideration by the Tax Office as a means of improving tax administration. While many of these suggestions may already be found in the Tax Office's audit work practices and processes, the Inspector-General believes that stakeholder concerns may arise from the execution and consistency in application of these work practices and processes.
5.56 The ICAA submitted that disputes, and thereby objections, could be prevented if there were improvements in how early the Tax Office properly considered the issues, the relevant facts and the application of the law prior to issuing an assessment or amended assessment. It submitted that in a self assessment environment the Tax Office's role is one of adjudication and the requirement for objectivity is paramount.
5.57 The ICAA said that there were instances where the Tax Office had not properly identified the facts, evidence, issues and application of the law earlier in the dispute and the matter was allowed to continue to the litigation stage.
5.58 In the Inspector-General's review into the Tax Office's management of litigation, the TIA also made a number of comments regarding the Tax Office's upstream processes. In the context of potential disputes and litigation, the TIA pointed out that the outcome of any litigation was dependent on the established facts. This, they said, required the Tax Office to have identified, at the earliest possible opportunity, the relevant facts and the legal principle or principles involved.
5.59 The TIA commented that the process of identifying the facts and issues and the collection of the necessary evidence relevant to a dispute should not start during the review or appeal. Rather, it considered that this should start at the very earliest stage that the Tax Office deals with a taxpayer in relation to the application of the relevant taxation legislation, whether that be through a risk assessment review, considering an application for a ruling or an audit. The TIA considered that, at a practical level, the problem for the Tax Office was to ensure that it clearly identified the issue, together with the relevant factual and other material relevant to that issue, as early as possible in the dispute process. The TIA submitted that this issue, and the resolution of it by the Tax Office, was the principal cause of many of the complaints made by taxpayers during a dispute.
5.60 In another submission during the Inspector-General's review into the management of litigation, the importance of the upstream processes was again noted:
The determination of an objection depends upon, and is framed by, the assessment that has been issued. It is self evident that the Tax Office's response to an objection will depend on the accuracy of and above all the thought that has gone into the factual and legal analysis in the earlier stages of the tax dispute process.
5.61 Another submission arising from that earlier review also expressed the view that there was often a failure on the part of tax officers to understand the material or commercial transactions during an audit. This, it was argued, limited the utility of the information gathering process and forced the Tax Office and the taxpayer to spend more time and money dealing with the broader range of materials than might be necessary. The submission suggested that, if more time was spent actually addressing the relevant issues, then this would limit the cost and the documents that needed to be gathered.
5.62 Numerous stakeholders made the following suggestions:
- Auditors should set out a list of the necessary elements of the dispute as understood by the Tax Office and in relation to each of those elements it should identify:
- the documents and other evidence which the Tax Office has collected and the source from which it was obtained;
- the documents and other evidence which the Tax Office wished to obtain through evidence gathering techniques including the exercise of compulsory powers;
- the other enquiries that the Tax Office would like to make; and
- the persons responsible for each task and the time by which that task or those tasks are to be completed.
- Auditors should maintain an internal system which includes the following materials:
- an indexed set of material documents in chronological order accompanied by an index which identifies the source of each document;
- an indexed folder containing documents of general application;
- a copy of all correspondence relevant to the matter, in chronological order; and
- a chronology of the steps taken in the audit.
- Auditors should, where appropriate, escalate the issue internally so that all senior officers are aware of the investigation and the issues raised by it, are constantly updated as to the progress of the investigation, and are able to contribute to the making of any relevant decision on an informed basis and in a timely fashion.
5.63 Stakeholders submitted that by placing greater emphasis on the document management and evidence gathering procedures, the Tax Office will be better able to identify:
- the issue or issues between the Tax Office and the taxpayer and the essential legal elements of each;
- the facts that the Tax Office knows which are relevant to that issue or those issues;
- the evidence that supports the finding of those facts;
- the facts the Tax Office would like to know and why; and
- the enquiries the Tax Office has made and whether those enquiries have been successful in whole or in part and why not.
5.64 To that end, the Tax Office has been developing a Facts and Evidence Worksheet for use in audit cases. The Tax Office advises that the purpose of the worksheet is to:
- assist in planning initial and follow-up information requests for audit cases;
- ensure that all the requirements of the statutory provision being applied have been considered, namely, the elements, integers or ingredients of the provision;
- ensure that all the requirements of the statutory provision being applied have been satisfied, namely, that the relevant facts are supported by evidence which supports the application of the particular provision;
- assist the auditor to consider and catalogue what additional facts and evidence are required and the possible sources for obtaining that evidence; and
- allow the auditor to reference the evidence to the specific elements of the provision being applied.
5.65 Importantly, the information contained in the worksheet will form the basis of the arguments in the position paper. The Tax Office states that the use of the worksheet will assist in structuring the position paper and developing the arguments. In particular, the Tax Office notes that the worksheet can be used at various stages in the audit process to assist with developing arguments, identifying problems with arguments, identifying evidentiary gaps, analysing the relevant provisions and ultimately writing the position paper.
5.66 The information in the worksheet is also intended to assist those who become involved at a later stage in the matter (for example, in a peer review capacity, objection or litigation) to see what has been done and what remains to be done. The Tax Office considers that the completion of the worksheet will not result in any additional work being created for the auditor as it will merely document the process already followed when establishing whether the Tax Office's case has been proven to the requisite degree.
Review findings and conclusions
5.67 The Inspector-General agrees with stakeholder sentiments that the proper identification and consideration of the issues, the relevant facts and the application of the law prior to issuing an assessment or amended assessment is critically important to minimising objections and disputes. The Inspector-General also agrees that the Tax Office must be better focused in its information gathering activities, collect information that can readily become admissible in a litigation context, and be obliged to state with clarity and precision the reasons for decisions taken prior to legal proceedings being instituted. Better practices in this area will have a significant flow-on effect in the handling and management of objections and any subsequent litigation through the crystallization of the issues at an earlier stage of the process.
5.68 The Inspector-General notes the positive steps recently taken by the Tax Office in this area, including the development of a Facts and Evidence Worksheet to be piloted in its active compliance areas, particularly in the SME and Serious Non-Compliance business lines.
5.69 In August 2007 the ARC released five Decision Making Best Practice Guides covering all key stages in the administrative decision making process and intended to assist original decision makers. The subject areas covered by these guides are lawfulness, natural justice, accountability, reasons for decision and evidence, facts and findings.
5.70 The ARC stated that the quality of administrative justice experienced by the public depends largely on the original decision makers 'getting it right'.33 It noted that administrative decisions are based on facts and an important element of decision making is making findings about those facts. The ARC Decision Making Best Practice Guide 2 set out a number of general requirements to ensure that findings of fact in reasons for decisions did not amount to legal errors, including:34
- determining all material questions of fact — that is, those questions that are necessary for a decision;
- not basing a decision on a fact without evidence for that fact;
- ensuring that every finding of fact is based on evidence that is relevant and logically supports the finding;
- not basing a decision on a finding that is manifestly unreasonable;
- observing natural justice; and
- complying with any statutory duty to give a written statement of reasons for the decision.
5.71 The ARC Decision Making Best Practice Guide 3 stressed that accounting for a decision is an important part of a decision maker's function.35 Full and accurate records should be kept, these records should reveal fair, rational and professional administration and should include the findings of material fact, the evidence on which the findings are based and the evaluation of the evidence. The ARC stated that the findings in relation to material facts are:
… the crucial points on which a decision-maker's decision turns. They should make sure that natural justice has been observed in connection with the findings and that the findings are well supported by evidence and reasoning.36
5.72 The ARC Decision Making Best Practice Guide 3 also discussed a number of important considerations and practices for a decision maker in determining the material and relevant facts to make a decision. It stated that findings in relation to the facts at issue must be based on evidence that is relevant and logically capable of supporting the findings, rather than being based on guesswork, preconceptions, suspicion or questionable assumptions.37
5.73 The Tax Office's audit work practices and processes already require staff to properly ascertain the relevant facts and supporting evidence and determine the correct application of the Tax Office view. However, an examination of sampled case files suggested that, while some audit decisions were of high standard in terms of setting out the relevant evidence, facts and findings, there was generally scope for improvement. In particular, the Inspector-General noted a distinct variation between business lines in the quality and clarity of the audit decisions and the related working documents.
5.74 While the Facts and Evidence Worksheet seeks to address some of the considerations raised in ARC Decision Making Best Practice Guide 3, the Inspector-General believes that there is further scope for improvement in the quality of decision making at the pre-amended assessment stages.
Understanding, discussion and communication of issues and decisions
5.75 The Law Council submitted that taxpayers do not always understand the basis on which the Tax Office has issued an assessment so as to enable them to comprehend the issues in dispute. It suggested that the Tax Office does not universally adopt a practice of providing an adjustment sheet identifying the nature of the amendment made with each amended assessment. The Law Council recommended that it was essential that the Tax Office be required to do so. In the course of the Inspector-General's review into the Tax Office's management of litigation, the Law Council also suggested that Tax Office position papers should be required to meet a minimum standard and that as a prerequisite it should require the auditor to set out all relevant facts, law, reasons and conclusions.
5.76 The ICAA noted that in many tax disputes the issue was one of fact or the interpretation of the facts, rather than the application of the law. It suggested that disputes would be best resolved by face-to-face discussions, submissions and further information being provided. The ICAA submitted that the Tax Office did not offer such opportunities, and during an audit only meets with taxpayers to deliver an 'exit interview'. The result of such a practice is that, if taxpayers disagree, then the only recourse available is for them to exercise their objection rights. The ICAA recommended that the Tax Office should be required to undertake all reasonable efforts to explain or reach agreement, as a precursor to taxpayers having to exercise their rights of objection. It also suggested that the Tax Office's work practices should ensure that the objection process was considered as a 'last resort' rather than the natural course.
5.77 The TIA said that there would be benefits if the Tax Office adopted a consistent practice of exchanging position papers, with the ability for taxpayers to elevate matters to specialist panels and to make submissions to those panels. It suggested that there was an absence of transparency regarding the Tax Office's decision making process and the responsibilities of particular areas within the Tax Office.
5.78 The TIA suggested that greater transparency, particularly at the outset of an audit, in relation to how a matter was likely to develop within the Tax Office, could lead to better and quicker decision making. It said that transparency would enable both parties to track the progress of the audit and remain accountable to each other. The TIA made a number of recommendations to improve the understanding of issues early in the dispute process and thereby address issues of delay in the resolution of disputes.
- Upon the issuing of an amended assessment, the Tax Office should provide a statement of reasons for the amended assessment. The TIA said that experience indicated that the Tax Office provided a statement of reasons for a decision to disallow an objection, and not necessarily the full reasoning that caused the Tax Office to reach the original decision. It would be more desirable for this statement to be provided at the time of the amended assessment, rather than upon the disallowance of the objection.
- Requiring a statement of reasons at the stage of the amended assessment is very important. As well as outlining the Tax Office's arguments and views of the law, the content of such a statement should include statements in relation to the factual basis for the assessment and the evidence supporting that factual basis.
5.79 Likewise, other stakeholders have stressed the importance of position papers and interim reasons for decision in tax administration by providing an opportunity for taxpayers to comment and respond before the issuing of a notice of amended assessment. They suggested that position papers and interim reasons should clearly set out the issues and their essential elements, the legislation relevant to the dispute, the material facts relevant to each issue, the chronology of critical events, the evidence the Tax Office has in its possession, any relevant case law and the Tax Office's position or view and the reasons why it has adopted that view.
5.80 The ARC survey found strong anecdotal evidence in agencies that it surveyed of a problem in relation to original decision makers' lack of personal contact with clients, and their ability and willingness to provide proper explanations of decisions to clients.38 In particular, the ARC found that the vast majority of original decision makers surveyed informed applicants of their decisions by letter, and that these letters contain information on internal review rights. The ARC believed that internal review may occur simply because the client has not had personal contact with the decision maker and has not had the decision properly explained, leading to cases being unnecessarily referred to internal review.39
5.81 The ARC Decision Making Best Practice Guide 4 set out principles on preparing a statement of reasons. It noted that the statement of reasons should contain the decision, the findings on material facts, the evidence or other material on which those findings were based and the reasons for decision.40 The ARC defined a material fact as 'a fact that can affect the outcome of a decision. Consequently, the findings on material facts are those that support the decision, based on the consideration of all relevant evidence'.41
5.82 The ARC noted that a material fact will sometimes be established directly by the evidence or that it might be inferred from other facts, in which case the statement of reasons should set out the primary facts and the process of inference. In relation to how the statement of reasons should set out the evidence on which the findings were based, ARC Decision Making Best Practice Guide 4 stated that it was not sufficient simply to list all documents that were considered in reaching the decision.42 Rather, the statement should 'identify the evidence that was considered relevant, credible and significant in relation to each material finding of fact'. In addition the statement should 'demonstrate that each finding of fact is rationally based on evidence [and] if the evidence was conflicting, the statement should say which evidence was preferred and why'.43
5.83 Finally ARC Decision Making Best Practice Guide 4 set out some basic requirements for the reasons of decision:
Every decision should be amenable to logical explanation. The statement must detail all steps in the reasoning process that led to the decision, linking the facts to the decision. The statement should enable a reader to understand exactly how the decision was reached; they should not have to guess at any gaps.44
Review findings and conclusions
5.84 The Inspector-General found that auditors were not always following the Tax Office's audit work practices and processes. An examination of sampled cases indicated that taxpayers were not always being presented with an interim audit report with proposed adjustments. This was also identified in an internal GST review where it found that case officers were not rigorously following audit procedures in relation to the audit model, specifically in relation to:
- providing interim findings to the taxpayer and seeking additional input from them; and
- formally discussing the audit findings with the taxpayer at an exit interview.
5.85 The Inspector-General found that many taxpayers were receiving finalisation letters without having had the benefit of any specific discussion about the compliance issues and penalties. The consequence of the Tax Office staff not following these procedures would be an increase in the lodgement of objections as the finalisation letter would represent the first opportunity for taxpayers to understand and respond to the Tax Office's conclusions on the facts, evidence and the application of the law. Some evidence of this consequence occurring includes the observation in the Tax Office's taskforce report that in the GST business line 92 per cent of objections were lodged with new information or evidence.
5.86 The Inspector-General believes that it is important that the Tax Office ensures that all reasonable efforts are made to explain why a decision is to be made as a precursor to taxpayers having to exercise their rights of objection. Work practices should also ensure that taxpayers are able to effectively communicate why they disagree with the preliminary views of an audit. This could be achieved by a mandatory use of position papers or interim reasons for decisions in audits or other active compliance activities. The Inspector-General also agrees with the Ombudsman that the Tax Office could use the audit process to better explain its position and clarify its interpretation.
5.87 Stakeholders have expressed concern at the Tax Office's approach and conduct in audits, in particular the communication of interim findings and the explanation of decisions. This was also identified as a driver to audit-sourced objections. The Ralph Review found that a revised process following an audit that would provide opportunities for negotiation and settlement should be put into place. This would better allow parties to focus on the issues and amounts in dispute before the amended assessment. The Ralph Review believed that this would also allow for more consideration of the issues and reduce cases of multiple assessments where issues are complex.
5.88 The ARC Decision Making Best Practice Guide 2 dealt with the implications of natural justice (or procedural fairness) for decision makers. It noted that one of the primary rules of natural justice, the 'hearing rule', required that a person who is to be affected by a proposed decision must be given an opportunity to express their views to the decision maker. It went on to state that:
The hearing rule requires that a person whose interests could be adversely affected by a decision be notified that the decision is to be made. The notice should provide sufficient information to allow the person to make effective use of the right to respond and present arguments. The nature of the decision and its possible consequences should be described. Details of when, where and how a submission can be made should be given. And the time allowed for a response should be reasonable in the circumstances, having regard to the preparation time involved.45
5.89 At times natural justice might also require disclosure of additional information to a person, so that they can prepare a case and gather evidence. The ARC Decision Making Best Practice Guide 2 went on to state that a person or organisation should be afforded an opportunity to respond to any adverse evidence or information — from whatever source — that could influence the decision or is prejudicial to them personally.46 The affected person must also be given adequate time to comment on the evidence obtained before findings of fact are made.
5.90 In line with the Ralph Review, the Inspector-General believes that upstream work practices should encourage open and direct communication between the parties and the timely exchange of information. This should entail the constant opportunity for an exchange of views and the refining of the issues to ensure that the entire process is more efficient and effective, including face-to-face discussion between the parties prior to an amended assessment which may allow for disputes to be settled at the earliest possible stage.
5.91 The Inspector-General considers that taxpayers that are affected by a proposed audit decision should have an opportunity to express their views to auditors, to respond to adverse information, including having sufficient information to understand the case to which they are responding. These requirements should be critical steps toward the finalisation of an audit case. There may be certain exceptional circumstances, such as instances of serious non-compliance, where this requirement may not apply.
5.92 In addition, information requests during audit should clearly articulate the type of information being sought, its purpose and the relevance of the information to the issues under examination. The Inspector-General notes that there may be some exceptional circumstances, such as instances of serious non-compliance, where this is not appropriate. Where information is requested at audit but is not provided, auditors should be assisting objection officers by flagging such cases and outlining why the information was relevant.
5.93 Communication between the parties and clarification of issues may be assisted in some cases by reference to or provision of information and material on specific issues under examination. For instance, there may be supporting documentation and information checklists on the Tax Office website to assist taxpayers on particular issues for private rulings or objections that may also be useful during discussions between the parties at the audit stage.
The Tax Office should review its current audit work practices and training programs in relation to the role of original decision makers to ensure that they align with the Tax Office's philosophy and approach to end-to-end dispute resolution and that they conform appropriately to the Administrative Review Council Best Practice Guides. In particular, the Tax Office should identify critical audit work practices that can have significant implications for dispute resolution at the objection and litigation stages. It should also encourage open and direct communication between the parties and the timely exchange of information and views.
Tax Office response
5.95 The Tax Office's current audit work practices and training programs have been designed in accordance with sound administrative principles. However, we agree to conduct a review of these practices and programs to consider the matters raised in your recommendation.
The Tax Office should continue with its development of the Integrated Quality Framework and ensure that the quality control system:
- adequately measures and provides for the continuous improvement of the overall quality of original decision making;
- includes identifying whether critical audit work practices and processes are being followed and applied consistently across business lines;
- assesses how well original decision makers have identified and considered the issues, the relevant facts, the reliability and weight of evidence supporting the findings of facts and the application of the law; and
- includes a causal analysis of quality in relation to the end-to-end process, so that comparisons between audit and related objection decisions can be undertaken, including an evaluation of the effect of internal review on original decision makers so as to minimise the potential negative effects of internal review.
Tax Office response
Taxpayers' failure to properly respond to Tax Office requests for further information during compliance activities
5.97 The Ombudsman noted that both taxpayers and the Tax Office can make mistakes, and both taxpayers and the Tax Office can have different interpretations of the law. The Ombudsman suggested that disputes could also become 'positional' — that is, more concerned with defending an established position than with reaching agreement about the correct position. The Ombudsman submitted that:
… in such cases audits tended to be characterised by evasiveness or defensiveness on the part of the taxpayer or his or her adviser. This often takes the form of non-responsiveness to Tax Office requests for more information, or a more general unwillingness to engage with the Tax Office.
5.98 The Ombudsman commented that advisers were reluctant to provide documents, disclose information and engage in bona fide dialogue with the Tax Office. He suggested that this could lead to adverse consequences for the taxpayer concerned including unnecessary litigation and disputation.
5.99 The Ombudsman submitted that from experience it was only once the dispute crystallised, following the assessment or amended assessment and objection, that some taxpayers were prepared to provide further information necessary to enable the Tax Office to make a more accurate assessment of the actual tax liability.
5.100 The Law Council stated that the resolution of taxpayers' objections required a clear identification and understanding by both taxpayers and the Tax Office of the issues in dispute and the merits of their respective arguments to the facts that were known. The extent to which taxpayers are prepared to incur the costs and effort of ensuring that this occurs at an early stage, may depend very much upon the size of the taxpayer and the nature of the issues. However:
- better-resourced taxpayers should be expected to undertake this analysis at an early stage in the process; and
- the majority of objections are likely to involve smaller, less well-resourced taxpayers. In such cases, a detailed analysis of the facts and issues in dispute may not occur until the issue is passed into the hands of practitioners who are familiar with the presentation of evidence and detailed legal argument.
5.101 The Law Council suggested that, whilst steps could be taken within the existing objection and review process to assist this analysis at an earlier stage, the benefits of doing so must be weighed against the cost involved.
Review findings and conclusions
5.102 The Inspector-General agrees that the attitude, motives and conduct of taxpayers and their representatives have a significant bearing on the resolution of a dispute. An examination of sampled cases indicates that another cause of objections is taxpayers not providing requested information during audits. In some cases, further information that was requested by the Tax Office during the audit was provided with the lodgement of the objection. On other occasions there were multiple Tax Office requests, during both the audit and objection stages, for further information. The Tax Office, taxpayers and their representatives have a shared responsibility to ensure that the administrative dispute resolution system should keep disputes and their associated costs and delays to a minimum. Where taxpayers lodge an objection seeking an internal review of a Tax Office decision, it is incumbent on taxpayers to then comply with all reasonable Tax Office information requests. It is also in taxpayers' interests to comply with Tax Office information requests as failure to provide that information may mean that the decision maker will be unable to make the findings of fact that will support a favourable decision. Likewise, the Tax Office must ensure that it avoids open-ended information requests and clearly articulates, with some level of specificity, the type of information that it is seeking and the purpose and relevancy of that information to the issues under consideration.
5.103 The Inspector-General found that the Tax Office has on-line checklists with supporting documents and information that taxpayers should lodge with an objection. There would be merit in those checklists also being provided to taxpayers subject to audit.
5.104 The Inspector-General notes that where evidence or information is critical to the decision making, then the Tax Office has the formal statutory powers to require taxpayers, or any other persons, to provide the Tax Office with such information or evidence and to attend and give evidence. The extent to which the Tax Office utilises this formal statutory power for the purposes of obtaining relevant and necessary information where previous informal information requests have failed is unclear.
5.105 The Tax Office is of the view that being required to exhaust its formal statutory powers may greatly add to the cost and timeliness of processing objections. In addition, the Tax Office believes that it would be incongruous to exercise its formal powers where the information it seeks aims to support the taxpayer's case. It states that by seeking the additional information, it is supporting taxpayers to make the alternative case and any use of formal evidence gathering powers is considered in a risk management perspective. In addition, non-compliance to formal requests leads to prosecution, which can be costly, time consuming and, in most cases, not in the interest of either party.
5.106 The Inspector-General agrees with the Ombudsman's sentiments that the timely and effective resolution of disputes is also dependent on the attitude, motives and conduct of the taxpayer concerned, and often also that of their adviser. Where a taxpayer is not satisfactorily complying with Tax Office information requests or inappropriately resisting Tax Office attempts to obtain further information, then the Tax Office is faced with no choice but to make a decision on the available facts and evidence.
5.107 In the event that such a dispute proceeds to external review and a taxpayer subsequently provides information previously requested by the Tax Office, then the Tax Office cannot be faulted if it settles, concedes or abandons the litigation, so long as it has acted in good faith and made every effort to obtain that information. Unfortunately, the Tax Office's quality assurance mechanisms have not sought to examine this aspect of performance, even though it would be a very useful indicator of the effectiveness of objections in resolving disputes.
5.108 The Inspector-General also considers that the tax system should include provisions or processes that motivate taxpayers, their advisers and the Tax Office to be responsive to the legitimate requirements of good administration, including minimising costs to the community.
30 This finding is inconsistent with data from the Tax Office's information management systems that 60 per cent of objections did not require further information prior to finalisation. One reason for this may be that the Tax Office's taskforce report only included four business lines within its sample.
31 Ralph Review, A Strong Foundation, p 120.
32 The Tax Office advises that for the 2007-08 income year the completion standard was revised from 100 per cent to 99 per cent. Additionally, where cases are considered complex and the case is finalised by the negotiated date, then the case will be taken to have met the completion standard.
33 ARC, Decision Making Best Practice Guide 1, p (v).
34 ARC, Decision Making Best Practice Guide 3, p 1.
35 ARC, Decision Making Best Practice Guide 3, p 11.
36 ARC, Decision Making Best Practice Guide 3, p 11.
37 ARC, Decision Making Best Practice Guide 3, p 3.
38 ARC, Internal Review of Agency Decision Making, paragraph 7.10.
39 ARC, Internal Review of Agency Decision Making, paragraph 7.10.
40 ARC, Decision Making Best Practice Guide 4, p 7.
41 ARC, Decision Making Best Practice Guide 4, p 8.
42 ARC, Decision Making Best Practice Guide 4, p 8.
43 ARC, Decision Making Best Practice Guide 4, p 8.
44 ARC, Decision Making Best Practice Guide 4, p 8.
45 ARC, Decision Making Best Practice Guide 2, p 6.
46 ARC, Decision Making Best Practice Guide 2, p 8.