By Damian O'Connor (Special Counsel) and Julian
Significant changes to the Freedom of Information Act 1982 mean
that you now have better access to information that the ATO holds
about you and your business tax affairs.
Along with the establishment of the Office of the Australian
Information Commissioner, these new laws give those involved in any
sort of tax dispute with the ATO a helping hand to favourably
resolve the dispute, as the laws make it harder for the ATO to keep
How have the freedom of information laws changed?
The Freedom of Information Amendment (Reform) Act 2010
introduces a new public interest test for disclosure, designed to
encourage a "proactive publication culture". This means
that freedom of information rules may no longer be so easily used
to restrict the publication of internal working documents prepared
by government officials.
Although this test is new, and we are yet to see how the ATO
applies it in practice, we believe that the new laws are a positive
change from a taxpayer's perspective. The new public interest
test clearly states the circumstances in which disclosure will be
favoured, and removes some of the justifications that have been
used in the past to restrict the release of documents.
The information that may now be more easily available includes
internal ATO workings on your tax affairs, such as memos that
discuss alternative views of whether you may have a tax liability,
or the general merits of your case. The ATO has traditionally been
very protective of this information.
Why would I want to make a freedom of information request?
There are two main reasons why you might want to make a targeted
freedom of information request:
To reveal information that helps to quickly resolve a tax
To hold the ATO officers handling your case to account, as they
are put on notice that they will have the merits of their decisions
scrutinised by a taxpayer and their advisers. In practical terms,
it is an effective way (and sometimes the only practical and
cost-effective way) of holding ATO officers to account.
What needs to go in a freedom of information request?
Despite reforms to the law, there are still exemptions that
allow the ATO to reject a poorly thought-out freedom of information
request. It is still necessary to make sure that potentially tricky
issues (such as whether you have legal standing to access the
information you want) are dealt with in your request.
You need to make sure that your request asks the right
questions, so that you get useful information back. When coupled
with recent changes in the law, a properly considered freedom of
information request is an efficient way to access information if
are in a dispute with the ATO;
are concerned that a tax position you have taken in the past
could give rise to a tax bill, along with interest and penalties;
just want to know what information has been taken into account
in making decisions about your tax affairs.
For more information on how a freedom of information request may
assist in resolving your tax dispute, please contact
HopgoodGanim's Taxation and Revenue practice.
The income tax treatment of any property lease incentive will vary, depending on the nature of the inducement provided.
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