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Review of ATO decisions to enforce insolvency – June 2019

The purpose of the insolvency review is to provide assurance to taxpayers and their representatives that the ATO's decisions to commence insolvency proceedings are reasonable.

Last updated 19 August 2019

1 Executive summary

You can download this publication in Portable Document Format (PDF) – download 2019 Insolvency Review - Overarching Report June 2019This link will download a file (PDF 1749KB).

  • This report was prepared by Indigenous Professional Services (IPS) in respect of its engagement by the Australian Taxation Office (ATO) to independently review 96 insolvency cases selected randomly by the ATO on a national basis.
  • The objective of the review was to provide an independent view as to whether the ATO’s insolvency actions are in accordance with legal requirements and ATO policy, in particular the content and direction of relevant ATO Practice Statement Law Administration policies (see section 2 for more details).
  • The review involved an assessment against two specific questions that were determined by the ATO in relation to the legal recovery actions of the ATO in its management of insolvency cases:  
    • Question 1: Did the ATO have a reasonable basis to believe the taxpayer would be aware we may commence formal insolvency proceedings?
    • The answer was 'yes' in all 96 case file reviews.
    • Question 2: Based on records available, did the ATO proceed with formal insolvency proceedings despite evidence of the taxpayer being viable and having the capacity to repay the tax debt within a reasonable timeframe on a risk based approach?
    • The answer was 'no' in all 96 case file reviews.

2 Background and approach

Introduction

IPS was asked to review a representative sample of randomly selected case files and provide an opinion on the following questions for sharing with the Australian community:

  1. Case Management – Did the ATO have a reasonable basis to believe the taxpayer would be aware we may commence formal insolvency proceedings?
  2. Taxpayer Viability – Based on records available, did the ATO proceed with formal insolvency proceedings despite evidence of the taxpayer being viable and having the capacity to repay the tax debt within a reasonable timeframe on a risk based approach?

In addition, the ATO was seeking broad assurance on compliance with the following Practice Statement Law Administration (PS LA) policies:

  • PS LA 2011/6 Risk Management in the enforcement of lodgement obligations and debt collection activities
  • PS LA 2011/14 General debt collection powers and principles
  • PS LA 2011/16 Insolvency collection, recovery and enforcement issues for entities under external administration
  • PS LA 2011/18 Enforcement measures used for the collection and recovery of tax-related liabilities and other amounts.

The ATO also provided information on internal policies and procedures relevant to debt management and collection that outlines to its staff how the ATO applies the PS LAs in practice.

Sample

The ATO provided a random selection of insolvency cases covering court ordered decisions made in 2018. The size of the selection was 96 cases. There were 40 bankruptcy cases and 56 liquidation cases. IPS was provided with the names of the selected clients to identify any conflicts of interest and one case (outside the 96) was removed from the sample prior to commencement of the review.

Review process and methodology

All reviews of the insolvency cases were conducted on ATO premises located in Brisbane during May 2019.

Reviews were based on electronic (Microsoft Excel) files prepared by the ATO for each case. The files comprised notes of communication and correspondence between the taxpayer and the ATO, extracted by the ATO from its electronic case management systems. The ATO summarised some of the case data and collated notes from its various systems into chronological order.

Our approach to each review was as follows:

  • review file notes and documentation in the files provided by the ATO to gain an understanding of the case, noting in particular the key dates and actions relating to the case
  • form an assessment of the ATO’s actions for each of the review questions, bearing in mind legal requirements and relevant ATO policies; and
  • complete an assessment of each file in relation to the decision made by the ATO.

Please refer to section 4 of this report in relation to limitations surrounding the review.

Assessment context

The ATO’s Practice Statement Law Administration (PS LA) policies considered as part of this review do not prescribe mandatory debt recovery actions and timeframes that must be adhered to by ATO staff in the management of debt cases.

Rather, they provide broad principles and a range of recovery actions that may be utilised by ATO staff in the management of cases, with each case to be considered and treated on its merits in accordance with the ATO’s compliance model.

The range of potential recovery actions includes, but is not limited to:

  • telephone or written contact with the debtor
  • accepting payment of a tax debt by instalments (entering into a payment arrangement)
  • accepting security in relation to an existing or future liability
  • the issue of a garnishee notice
  • legal action, up to and including, the liquidation of companies or the bankruptcy of an individual.

PS LA 2011/18 provides, in part, that the final legislative sanction for debtors who do not pay or enter into payment arrangements is the sequestration of an individual’s estate in bankruptcy or the liquidation of a corporate debtor, but that these actions will normally be used only after other client engagement and recovery actions have been taken and proven unsuccessful.

PS LA 2011/6 provides, in part, that there is no one correct answer for dealing with outstanding returns or debts; the decision-making process entails the evaluation of objective and subjective factors before reaching a conclusion as to overall risk.

PS LA 2011/6 also provides, in part, that:

  • all taxpayers will be treated professionally, equitably and fairly
  • taxpayers can expect each case to be considered on its merits
  • taxpayers can expect the ATO to apply the most severe measures and sanctions in response to the highest level of risk in accordance with its compliance model.

While the ATO PS LAs do not prescribe mandatory debt recovery actions and timeframes, there are internal ATO guidelines regarding contact or attempts to contact the Taxpayer prior to proceeding to bankruptcy or liquidation. These guidelines do vary from time to time and it is not possible to say what specific internal guidelines were in place at the time of each decision made by ATO staff. In the absence of measurable criteria against which IPS could objectively assess the actions of the ATO in answering the review questions IPS has used their professional judgement about what is reasonable.

In undertaking our assessment against the review questions, IPS has considered the following:

Question 1: Was it likely that the taxpayer would be aware that the ATO may commence legal action prior to serving a bankruptcy notice or issuing a s459E notice?

Question 2: Based on the evidence in the case notes was there any evidence to suggest that the taxpayer was viable?

3 Findings

Review questions

Case management

Did the ATO have a reasonable basis to believe the taxpayer would be aware we may commence formal insolvency proceedings?

Explanatory note: IPS made an evaluation based on whether it was likely that the taxpayer would be aware that the ATO may commence legal action prior to serving a bankruptcy notice or issuing a s459E notice?

Yes: 96 of 96 cases

No: 0 of 96 cases

Taxpayer viability

Based on records available, did the ATO proceed with formal insolvency proceedings despite evidence of the taxpayer being viable and having the capacity to repay the tax debt within a reasonable timeframe on a risk based approach?

Explanatory note: IPS made an evaluation based on the evidence in the case notes that may have suggested that the taxpayer was viable?)

Yes: 0 of 96 cases

No: 96 of 96 cases

Observations

Observations from the 96 cases reviewed are as follows:

  • The ATO made attempts to contact the taxpayer in all 96 cases reviewed.
  • Appropriate legal notices were issued to the taxpayer prior to the initiation of insolvency proceedings in all cases such that the taxpayer would have been aware of the debt and that the ATO could take legal action at any time.
  • In all cases reviewed there was no evidence that the taxpayer was viable prior to the commencement of insolvency proceedings.
  • 40 of the cases reviewed were individual bankruptcies and the remaining 56 were corporate liquidation cases.

4 Limitations

The ATO randomly selected cases for review from their national list of debt management files. IPS had no input into the selection process and provides no assurance that the sample or the conclusions drawn are representative of the full population of case files.

Reviews were based solely on information provided to IPS by the ATO. IPS did not independently audit or verify the information and has relied on ATO’s assurance that the information provided is a comprehensive and accurate record of all correspondence. Our engagement did not constitute an audit or review in accordance with Australian Auditing Standards and accordingly no such assurance or opinion is provided in this report.

Our review was limited to checking to see whether ATO staff had made assessments of financial information and viability when required. IPS did not review the correctness or validity of any such assessments.

In answering the review questions, it is noted that correspondence with the taxpayer includes correspondence via the taxpayer’s authorised representative (eg, tax agent or lawyer).

Please note the assessment context outlined in section 2. The findings and conclusions reached in the review are subjective. It may be possible that a different finding could be drawn from a review of the same file.

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