ATO Second Commissioner Andrew Mills, who heads up Law Design and Practice, believes there is strength in his office to undertake the position of Labor’s proposed introduction of a new Second Commissioner of Appeals because it already performs the role as an independent reviewer.
Mr Mills notes that since 2013, the Tax Office has been progressively implementing this independent review with the establishment of the Review and Dispute Resolution (RDR) line and the introduction of independent review for taxpayers with a turnover of more than $250 million under his office.
Progressively, all objections have moved to RDR, with the last of those being related to decisions about ABN decisions, moving in 2018.
“The purported conflict that is said to arise is that ‘precedential ATO views are developed and finalised in the same group and taxpayers who wish to object to ATO decisions may have to also challenge an ATO precedential view’,” said Mr Mills at the Australasian Tax Teachers’ Association annual conference in Perth.
“The problem with that view is that separation of ‘appeals’ into a separate group would do nothing to change the obligation of ATO officers to follow precedential views unless they can distinguish their case from that view or choose to challenge the view. There is no ‘conflict’ as such.
“That ATO officers should follow well-thought through precedential views of the ATO should come as no surprise, and indeed, should be expected by taxpayers to ensure consistency in the application of the law.”
According to Mr Mills, the ATO has “well-established mechanisms” to allow officers to challenge the view when there are changes, including new court decisions, a change in law, or if there is a change in industry practice that sheds a light on the previously formed view.
“Consistent with what a senior barrister taught me as a young tax practitioner, my staff tell me that it is usually the facts that give rise to different outcomes from what may be contained in an ATO precedential view. That is, the precedential view just doesn’t apply,” he said.
“The same would occur whether the ‘appeals’ function remained as part of the Law Design and Practice group or if it was part of a completely separate group.”
ATO Commissioner Chris Jordan had earlier said that the agency had already made an effort to distinguish its dispute resolution process but would be open to moving the function elsewhere if its processes were not up to scratch.
“We think we’re doing well in an independent way, facilitating the resolution of disputes through mediation, alternate dispute resolution processes, and if we think we are doing well but no one else does, then we have got to think about that,” Mr Jordan said.
“Maybe we need a small business tax appeals division that is focused on mediation and ADR techniques in a more informal way rather than a court process lawyer way. We’re not saying we are the best. I will listen and I will absolutely take on board and if we think we are doing a proper thing but others don’t think so, then OK, let’s change.”