This information forms part of the publication Access and Information Gathering Manual version 1/2010. For a list of changes to Chapter 4 please refer to the Appendix.
4.1.1. These guidelines apply to the conduct of interviews resulting from a notice issued under a law administered by the Commissioner of Taxation as discussed in Chapter 2.
4.1.2. Whenever possible, it is preferable to use an informal approach to obtain information. However, there are circumstances where you should use the powers to require a person to attend and give evidence and/or produce documents, such as if a person does not respond to an informal letter, or is reluctant to cooperate fully to questions put without compulsion, or demands a formal request. Chapter 2 of this manual sets out guidelines on when to use formal rather than informal approaches.
4.1.3. When you are conducting an interview under a law administered by the Commissioner of Taxation (formal interview) you need to be fully aware of your powers and responsibilities. Therefore, before an interview, you should read about notices requiring attendance and giving of evidence in Chapter 2 and about confidential communications and documents that the notice powers do not abrogate - for example, legal professional privilege. Discussed in Chapter 6 and about certain accountants' papers discussed in Chapter 7.
4.1.4. Under the Privacy Act 1988, individuals have the right to:
- be advised why personal information is sought and the legal authority for the request
- be treated fairly and in a non-intrusive way
- see information held about themselves and ask for it to be corrected if it is wrong
- have records of their personal information kept safe and secure, and
- complain to the Privacy Commissioner if they consider their privacy has been interfered with.
Preparing for the interview
4.1.5. It is essential in preparing for any formal interview that:
- the preparation is done at an early stage, and
- the object(s) of the interview is clearly identified.
4.1.6. The objects of the interview may include establishing a fact, clarifying a fact, checking a fact or having a person provide a sworn statement of a version of events that had been previously disclosed.
4.1.7. Identifying at an early stage why the person is being compelled to attend and give evidence is very important - it frames the form of the notice and it informs the questions that you might ask and how you will prepare for the interview.
4.1.8. In preparing for a formal interview you should:
- confirm the availability of other officers who are to be present at the interview
- book an interview room early to ensure that it will be available when required and confirm the booking two days before the interview
- arrange for a tape-recorder and an adequate supply of batteries to be available
- consider holding a trial interview
- in case interviewees do not bring the notice requiring attendance with them, have a photocopy of the original notice to use as an exhibit
- make at least two copies of documents the contents of which you intend to specifically refer to in the interview
- ensure you are authorised to conduct the interview
- read the following documents: Personal field security, Managing potential conflict in the field, Security incident report and Emergency security advice service
- consider whether you require an access specialist to attend the interview (if so their name must appear on the notice) or to be on standby in the event of issues such as claims for legal professional privilege or questions as to the validity of the notice.
Preparing questions
4.1.9. You should carefully consider what questions to ask. It is helpful to prepare a list of questions to use as a guide. Allow space to add additional questions which may arise during the interview. The questions should be:
- relevant to the income or assessment of the person identified in the notice
- carefully framed to obtain the information sought
- worded in plain language, avoiding terms the interviewee may not be familiar with, such as jargon used within the ATO, and
- simple, rather than complex. It is better to ask a series of separate questions rather than include a number of issues in one question.
Example
Sandra, a small business auditor, is interviewing Tom about the business use of his car. She could ask one complicated question like this:
Q. If you purchased a car, when was that, how much did it cost and how was it used in your business operations?
Alternatively, Sandra could ask a series of simple questions as follows:
Q. Did you purchase a car?
Q. When was it purchased?
Q. How much did it cost?
Q. Did you use it in your business?
Q. In what way was it used?
By asking a series of simple questions Sandra is better able to obtain the facts in a systematic manner.
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4.1.10. You should review every aspect of the case before the interview so that you can deal with any unexpected developments.
4.1.11. You should also ensure that the questions you plan to ask are within the limits of the relevant provision. For example, you cannot ask an interviewee any questions that would disclose a communication that would be subject to legal professional privilege or the accountant's concession.
Preparation of the interview room
4.1.12. On the day of the interview, before the interview is meant to start, you should prepare the interview room. You should make sure that:
- the room has enough chairs. You should contact the interviewee several days before the scheduled interview - this will enable you to be ready for additional people. For example, if a tax agent or legal representation of the interviewee intends to attend, you may need to review who will attend for the ATO
- the seating arrangement takes into account such factors as ensuring that sunlight will not be in anyone's eyes
- dual or triple deck tape recorders are set up and tested, microphones are properly located, and an adequate supply of cassettes and spare batteries is on hand
- note paper and pens are available
- items such as Bibles or other appropriate texts, oath cards and exhibits are positioned ready for use
- drinking water and glasses are provided
- you have official receipts for documents, and
- other necessary items are available, such as:
- copies of the relevant legislation eg s264 Income Tax Assessment Act 1936
- prepared questions, list of topics, or a similar aid
- files and work papers
- a clock.
4.1.13. Before the interview commences, you should ensure that all the people needed are present in the interview room. These may include:
- the other officer(s) named in the notice. If the case can be divided into segments, the officers may decide to share the questions in relation to the different segments. You may need to vary the actual conduct of the interview, depending on the circumstances existing at the time
- if you think it appropriate, another person not named in the notice, who could operate the recording equipment, answer the telephone, arrange photocopies and perform any other duties reasonably necessary for the conduct of the examination.1
- if you consider it appropriate, an access specialist. Note: this person must be named on the notice
- stenographers, if required, and
- Australian Government Solicitor (AGS) or counsel, if required.
Preparing for challenges which may be made during the interview
4.1.14. There are a number of challenges that may be made by interviewees and or third parties to the interview process. The following list outlines some of those possible challenges and provides some guidelines for field officers in dealing with the contentions:
- interviewee objects to the interview being recorded
- interviewee objects to documents being copied
- interviewee objects to attendance by non-ATO staff
- unauthorised third parties
- refusal to leave by unauthorised third parties
- interviewee refuses to continue without third party
- interviewee refuses to take oath/affirmation
- interviewee refuses to answer questions
- interviewee refuses to answer questions asked by Counsel
- legal professional privilege claims, and
- accountant's concession claims.
4.1.15. In order to prepare for possible challenges, you may consider having an access specialist on stand by to provide help if the situation arises during an interview.
Use of counsel
4.1.16. In some cases, it may be appropriate for the ATO to engage counsel to assist or conduct formal interviews.
4.1.17. The Full Federal Court in Grant2 held that the ATO could use counsel to conduct examinations under section 264 of the Income Tax Assessment Act 1936 (ITAA 1936). Some of the cases in which counsel might be used include:
- complex matters of fact are involved
- complex claims for legal professional privilege
- the interviewee is to be accompanied at the interview by counsel
- testing of the interviewee's credibility by cross examination, and
- a legal challenge to the notice or direction is likely to be raised at the interview.
4.1.18. If counsel is engaged to conduct the questioning at a formal interview, it is essential that, as part of the preparation, counsel is adequately briefed as to the facts already known by the ATO and also the tax issues that are likely to be in dispute.
4.1.19. In addition to the above preparations of the necessary materials, it is essential in all cases in which the ATO engages counsel that the following matters be discussed and agreed upon:
- the person(s) who is/are going to ask the questions. This is important. If more than one person asks questions, there is a risk that the examiner's flow of questioning will be interrupted. It also raises questions of possible oppression. It is also important to determine in advance, the procedure to be adopted if a tax officer present at the interview wants a point clarified arising from a question from counsel
- the topics to be canvassed
- the documents relevant to each topic to be discussed
- the process of recording the examination and marking the documents referred to in the course of the examination. One officer should be given the task of ensuring that throughout the examination the documents referred to are marked and kept separate, and
- the method to be adopted by the examiner for reporting the results of the examination. The examiner should be asked to prepare a note or memorandum (cross referenced to the transcript) identifying the topics discussed and the evidence which was obtained relevant to each topic.
Last Modified: Friday, 27 August 2010