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  • National Tax Liaison Group key messages 4 March 2019

    Key highlights

    Key highlights from the meeting included:

    • An overview of the realignment of ATO business areas in Client Engagement Group.
    • Discussion of the ATO’s Cryptocurrency Program 2019.
    • How taxpayers can manage the impact of announced and unenacted measures having regard to the ATO’s Practice Statements.
    • Discussion on recommendations to improve consultation arrangements for new legislation and related guidance.
    • Explanation of ATO’s role in the trial of the National Tax Clinic program.
    • Update on IGTO review post Four Corners and the ATO’s use of garnishee notices.


    Grant Wardell-Johnson, Chartered Accountants Australia and New Zealand; and Second Commissioner Andrew Mills, Law Design and Practice Group

    Co-chair Grant Wardell-Johnson welcomed members noting Tim Neilson’s appointment to the NTLG as The Tax Institute’s representative for 2019 and Jeremy Hirschhorn’s attendance as Second Commissioner, Client Engagement Group.

    Grant Wardell-Johnson noted that the NTLG meeting on 30 November 2018 was the last meeting for The Tax Institute’s representative Tracey Rens and CPA Australia’s representative Sue Williamson. On behalf of NTLG members, Grant Wardell-Johnson thanked Tracey Rens and Sue Williamson for their contribution to the NTLG in 2018.

    Grant Wardell-Johnson expressed members’ appreciation for the additional information on Legal Professional Privilege that was included in the key messages from the 30 November 2018 NTLG meeting.

    Second Commissioner Andrew Mills noted the following:

    • there are some cases of tax litigation in the courts
    • there have been significant issues reported in the media, for example, the recent activities regarding illegally grown tobacco, the trial of former ATO employee Richard Boyle and the outcome of the trial for Michael Cranston
    • creation of the Small Business Taxation Division in the Administrative Appeals Tribunal (AAT) designed to make the process to dispute an ATO objection decision at the AAT easier, faster and cheaper for small businesses
    • the commencement of a trial of the National Tax Clinic program run by 10 Australian universities
    • the realignment of ATO business areas in the Client Engagement Group.

    Second Commissioner Jeremy Hirschhorn outlined the changes within the Client Engagement Group that will be effective from 12 March 2019. The principle for the changes was to take a holistic whole-of-client view to bring in responsibility for all products into the client based business lines providing improved alignment on how the ATO interacts with its clients.

    The Client Engagement Group’s new structure will be:

    • Individuals and Intermediaries led by Deputy Commissioner Alison Lendon, will bring together the largest group of taxpayers and advisers. The lodgment work will be moved to the Debt business area led by Robert Ravanello
    • Small Business led by Deputy Commissioner Deborah Jenkins, will be a ‘one stop shop’ for all obligations for small businesses as taxpayers. This will include indirect tax for small business and a central location for GST including risk infrastructure for GST
    • Superannuation and Employer Obligations led by Deputy Commissioner James O’Halloran, will bring together a continued focus on superannuation and the obligations functions for businesses as employers incorporating Single Touch Payroll, Employer Assurance and Fringe Benefits Tax areas
    • Private Wealth led by Deputy Commissioner Tim Dyce, will focus on wealthy individuals and their associated groups and will include the Not-for-Profit and Excise areas
    • Integrated Compliance led by Deputy Commissioner Will Day, will focus on more complex matters needing specialist support and, in time, will act as an investigations referral service for more complex audits from other groups and co-ordination of “whole of ATO” special compliance projects
    • Public Groups led by Acting Deputy Commissioner Rebecca Saint, will maintain its existing structure and gain the Indirect Tax Public Groups area from Indirect Tax
    • International led by Deputy Commissioner Mark Konza, will maintain its existing structure and gain the International function from Indirect Tax
    • Smarter Data led by Deputy Commissioner Marek Rucinski, will maintain its existing structure and will be expanded to include a new function focussed on better integrating automation and analytics into our delivery of services.

    Members noted that it would be useful to see an updated organisational chart. It was agreed that the ATO will provide members with the link to the published ATO organisational chart updated following the realignment of ATO business areas.

    Action item


    Due date

    31 March 2019


    NTLG Secretariat

    Link to updated published ATO organisational chart

    NTLG Secretariat to provide members with the link to the published ATO organisational chart updated following the realignment of ATO business areas.

    Post-meeting update: A link to the updated ATO organisational chart on was provided out-of-session to members on 18 March 2019.

    Environmental scan

    All members

    Members noted the House of Representatives Standing Committee on Tax and Revenue report (PDF, 1.89MB)External Link from the inquiry on the 2017 Annual Report of the ATO was released on 21 February 2019. Andrew Mills noted the ATO has addressed a number of the recommendations.

    Treasury report

    Paul McCullough, Division Head, Corporate and International Tax Division, Revenue Group, Treasury

    Paul McCullough provided the following update:

    • eleven tax measures have passed the Senate and currently awaiting Royal Assent
    • seven measures are currently before the House of Representatives
    • nine measures have not progressed including the Capital Gains Tax measures related to foreign residents and the Research and Development measures
    • since the 30 November 2018 NTLG meeting, there have been:  
      • five policy consultations – digital economy, taxing fame or image, taxing insurance, Black economy series and initial coin offerings
      • five legislative consultations – CCIVs, regulating GST sun-setting provisions, regulating super sun-setting provisions

    Grant Wardell-Johnson asked about the consultation process for tax measures that are announced in the budget. Paul McCullough advised that only the simplest measures are usually implemented from Budget night with most requiring consultation before introduction.

    ATO Cryptocurrency Program 2019 and beyond

    Paul Drum, CPA Australia; Will Day, Deputy Commissioner, Private Groups and High Wealth Individuals, ATO; and Ben Brown, Director, ATO Cryptocurrency Program, Private Groups and High Wealth Individuals, ATO

    The ATO advised that there has been a lot of activity in this area with the ATO seeking to normalise the treatment of cryptocurrency. The ATO program has been around for 12 months with the noticeable work undertaken in providing two major updates of advice and guidance and social media campaigns. The previous negative media sentiment around cryptocurrency has now moved to a more neutral position which is also supported by the ATO Community channel and commentary on social media platforms. Accountants have helped with taking up the ATO messaging regarding cryptocurrency, in particular, the advertising of crypto-accountants in industry to help taxpayers meet their obligations. This is also supported by a large number of third party software solutions to help manage cryptocurrency portfolios that also are linking to our web guidance. There were initially a number of private ruling requests, which have noticeably reduced. Moving forward, the program is continuing to focus on web guidance with releases of significant guidance to be scheduled in April and October 2019 if required.

    However, for 2019, the program is shifting to focus more on:

    • client engagement activities which include both prevention and correction ends of the strategy spectrum, which includes the use of data matching to help with those strategies
    • to strengthen international engagement, in particular through the J5
    • continue to build our internal capability, in particular normalising cryptocurrency in how staff already do their work.

    Other points noted:

    • TaxTime material will include guidance similar to what is available in public advice and guidance. A label will not be included in the income tax return specific to cryptocurrency. However, the ATO is continuing to explore the use of the label on self-managed super funds’ returns
    • the focus for the future will be a move towards compliance. Cryptocurrency providers/brokers are open to engaging with ATO on data matching with the ATO aiming to start data matching in last quarter of 2019
    • there has been a significant amount of international engagement – directly with agencies and through the OECD, how international regulation and administration continues to evolve will directly impact on how cryptocurrencies are not only used in the economy but also considered as part of the tax and superannuation system
    • the ATO has also been working closely with AUSTRAC and ASIC, the Council of Financial Regulators (which includes APRA, RBA, Treasury and ASIC) to help understand and contribute to policy considerations. Most notably the ATO provided significant input into Treasury’s recent Initial Coin OfferingsExternal Link consultation paper. A number of members indicated they would be providing a response to this paper
    • the Cryptocurrency market is still developing domestically and internationally and will continue to challenge the ATO and other regulators and administrators.

    Current issues with trusts and the tax system – RMIT report

    Tony Greco, Institute of Public Accountants; and Will Day, Deputy Commissioner, Private Groups and High Wealth Individuals, ATO

    Members requested this item to discuss the RMIT report. Tony Greco asked if members could get some background into the commissioning of the report noting the ATO did not agree with all the findings.

    In 2016 the ATO commissioned the Royal Melbourne Institute of Technology (RMIT) to conduct independent research and provide another perspective on tax issues involving trusts. The research paper Current Issues with Trusts and the Tax System covers a wide range of topics from basic information regarding trusts to complex issues. However, the ATO does not agree with all aspects of the findings or the methodologies adopted.

    The ATO has published an executive summary of the report on its website.

    ATO proposal to cease issuing certain annual Taxation Determinations

    Adrian Varrasso, Law Council of Australia; Andrew Orme, Deputy Chief Tax Counsel, Public Advice and Guidance, ATO; and Jeya Somasekaran, Assistant Commissioner, Private Groups and High Wealth Individuals, ATO

    Members raised concerns about the justification (improved timeliness and that the information was easier and quicker to access) that was provided in the consultation paper for ceasing to issue some annual Taxation Determinations (TD) and replace with website content.

    The ATO noted:

    • there is a finding that overwhelmingly people use the website guidance on rather than the annual TDs
    • there is a desire to have a single source of truth
    • these TDs are not about an interpretative decision rather it is a statement of fact/law
    • feedback received does identify that some of the TDs do contain the application of the Commissioner’s discretion, so retention of the annual TD will be considered further in these cases
    • although there is some duplication of sign off processes where both a TD and website guidance is provided, this is a relatively minor issue.

    Adrian Varrasso noted a general concern regarding a perceived trend for the ATO to provide guidance in a format that was non-binding, as compared to binding. Andrew Orme and Adrian Varrasso will discuss this out of session.

    Commissioner of Taxation v BHP Billiton Limited 2019 FCAFC 4

    Tim Neilson, The Tax Institute; and Kirsten Fish, Deputy Commissioner, Strategy and Support, Service Delivery, ATO

    Tim Neilson noted that the BHP decision is significant and that members were interested in the ATO’s response to the case. The ATO noted that there is limited information they can provide as BHP Billiton has applied for special leave to appeal.

    The media reporting of this decision has overstated its significance, possibly as a result of conflating it with another matter. The issue in dispute is an interpretative issue involving an element of the definition of ‘associate’ in the Income Tax Assessment Act 1936. The decision may be relevant to other dual listed companies. Consideration may also be given to the decision in the context of stapled groups and the application of section 974-80 of the ITAA 1997.

    Pintarich decision

    Clint Harding, The Law Council of Australia; Kirsten Fish, Deputy Commissioner, Strategy and Support, Service Delivery, ATO; Robert Ravanello, Deputy Commissioner, Debt, ATO; and Steven Atkins, Assistant Commissioner, Debt, ATO

    Members raised concerns about the impact of this case decision. Members wanted to discuss how a taxpayer determines whether a letter is evidence of a decision or simply an automated response. Clint Harding queried if a Decision Impact Statement (DIS) has been issued.

    The ATO noted that a DIS has been prepared and will be issued in due course. The DIS identifies that the majority conclusion in the case is consistent with the precedent that there needs to be mental decision making. The ATO’s position is that a taxpayer should generally be able to rely on the accuracy of information that is put in writing noting that one piece of correspondence should not be viewed in isolation from other discussions that have occurred, and that the facts and circumstances of the matter should also be considered. The ATO also noted that the letter at issue in the decision was a template used by staff which has since been changed in the context of extensive direct communication.

    Clint Harding queried whether the ATO is moving toward the use artificial intelligence to make complex decisions. The ATO noted that using artificial intelligence to make complex decisions is a long way off and that that unfavourable decisions should be made by a person although the decision could be augmented by artificial intelligence.

    Garnishee notices and Fyna Projects decision

    Clint Harding, the Law Council of Australia; Andrew McLoughlin, Acting Inspector-General of Taxation; Robert Ravanello, Deputy Commissioner, Debt, ATO; and Steven Atkins, Assistant Commissioner, Debt, ATO

    Update on IGTO review post Four Corners

    The ABC Four Corners program, which aired on 9 April 2018, included allegations by current and former ATO staff about inappropriate use of ATO powers to issue garnishee notices particularly in relation to small business.

    Following the Four Corners program, the Inspector-General of Taxation and Taxation Ombudsman (IGTO) announced a Review into the Australian Taxation Office’s use of Garnishee Notices in relation to the allegations as outlined in the terms of reference.

    The Acting IGTO, Andrew McLoughlin noted that the review was directed specifically at the allegations given their serious nature. The approach taken was intensive and comprehensive with the IGTO review team gathering all the facts and evidence. The IGTO team worked independently and the ATO staff were highly cooperative throughout the conduct of the review. Former ATO officers also contributed to the review.

    The report includes a detailed outline of the facts and evidence including a considerable range of document extracts from which the analysis is drawn that supports the findings and recommendations made in that regard.

    The report is expected to be finalised and issued shortly.

    Post meeting update: The Inspector-General of Taxation's report for the Review into the Australian Taxation Office's use of garnishee notices Link was publicly released on 13 March 2019.

    Fyna Projects decision and ATO use of garnishee notices

    Clint Harding noted the Fyna Projects decision and the concern that the use of notices issued under section 260-5 of Schedule 1 of the Taxation Administration Act 1953 (260-5 Notices) are a high impact for taxpayers.

    The ATO noted that in the last 10 years there have only been around a dozen cases challenging garnishee notices with only one other case where it was found that the Commissioner issued the notice improperly.

    Consultation arrangements for new legislation and related guidance

    Michelle de Niese, Corporate Tax Association; Paul McCullough, Division Head, Corporate Tax and International Division, Revenue Group, Treasury; Simon Writer, Division Head, Law Design Office, Treasury; Tom Reid, Chief Adviser, Law Design Office, Treasury; and Louise Clarke, Deputy Commissioner, Policy Analysis and Legislation, ATO

    At the 30 November 2018 NTLG meeting, members discussed the development of guidance material for new law. Following on from those discussions, the non-ATO members provided a draft paper titled “Consultation on Tax Policy and the Administration of the Tax System” for discussion.

    Michelle de Niese noted that although NTLG members acknowledge the significant improvements that have been made to consultative processes over the past decade, the key role of consultation in improving the quality of tax legislation and the operation of the tax system more generally means it is important to strive for continuous improvement in the arrangements that underpin it.

    NTLG members discussed the following potential improvements to existing consultation arrangements as recommended in the paper:

    • adopting a consultation framework
    • conducting consultation at the pre-policy announcement stage on technical/routine matters
    • clarifying the objective of tax legislation at the start of the tax law design process
    • ensuring legislation products and ATO guidance match their policy intent
    • broaden the scope of the Commissioner’s statutory remedial power
    • reviewing and making public the stock of unlegislated announcements annually.

    Members noted they support a broadening of the existing Commissioner’s statutory remedial power beyond its current parameters, or a review of the current processes supporting the use of the statutory remedial power to ensure it is being used in all appropriate circumstances. The ATO suggested that it may assist members to understand the current process for applying the remedial power if the ATO provided members with examples of the factors which were considered in determining that a particular proposal was not suitable for the use of the power.

    Action item


    Due date

    20 June 2019 NTLG meeting


    Deputy Commissioner, Policy Analysis and Legislation

    Commissioner’s statutory remedial power – Examples of proposals considered not suitable

    Louise Clarke to provide members with examples of the factors considered in determining that a particular proposal was not suitable for the use of the Commissioner’s Statutory Remedial Power.

    Treasury representatives Simon Writer and Tom Reid noted that Treasury has been improving the way they manage the flow of legislation as well as investing more in the management of measures, which will also improve consultation processes. A significant improvement has been the better throughput of measures noting that the average timeframe from announcement to introduction into Parliament is now approximately 18 months. The non-ATO members raised a concern regarding the lack of visibility of the progress of measures from being announced to their introduction into Parliament.

    Simon Writer noted that one of the challenges faced with Explanatory Memoranda (EMs) is the number of audiences who use the information. Treasury is reviewing the quality, structure and presentation of these documents. The main purpose of the EMs is to explain the legislation that has been introduced into Parliament as well as provide context on how that legislation is intended to operate. Members noted that it is essential that the EMs clearly articulate the policy intent.

    Members suggested that NTLG members and Treasury representatives have a further discussion around opportunities to better capture the policy intent in EMs and to provide a further response to the recommendations in the discussion paper.

    Action item


    Due date

    20 June 2019 NTLG meeting


    All NTLG members

    Consultation arrangements for new legislation and related guidance

    NTLG members and Treasury to have a further discussion around opportunities to better capture the policy intent in Explanatory Memoranda and to discuss the recommendations in the NTLG members’ discussion paper.

    Announced unenacted measures likely to be prorogued

    Grant Wardell-Johnson, Chartered Accountants Australia New Zealand; Paul McCullough, Division Head, Corporate Tax and International Division, Revenue Group, Treasury; Simon Writer, Division Head, Law Design Office, Treasury; Tom Reid, Chief Adviser, Law Design Office, Treasury; and Louise Clarke, Deputy Commissioner, Policy Analysis and Legislation, ATO

    Grant Wardell-Johnson questioned what the ATO’s and Treasury’s plans are for how practitioners should manage the uncertainty regarding announced but unenacted measures that are likely to be prorogued with the upcoming election.

    The ATO will apply Practice Statement Law Administration (PSLA) 2007/11 which outlines our administrative treatment for taxpayers affected by announced but unenacted legislative measures.

    Treasury advised there is a process where they track where measures are at and advise the Government of the start dates.

    Members noted that it would be better if tax legislation commenced after Royal Assent of the passed legislation. This would also mean that a measure would always be prospective rather than retrospective. It was acknowledged that there are some cases where an immediate start date is necessary.

    OECD digitalisation of the economy

    Grant Wardell-Johnson, Paul McCullough, Corporate Tax and International Division, Revenue Group, Treasury; and Mark Konza, Deputy Commissioner, Public Groups and International, ATO

    Grant Wardell-Johnson noted that members were interested in the ATO and Treasury’s reactions to the current consultation work of the OECD regarding tax and the digitalisation of the economy. The consultation paper has two pillars which has the potential to dramatically change approaches to international taxation.

    The relevant groups of the OECD will meet in late May 2019 and the G20 Finance Ministers meet in June 2019. Further consideration may be necessary after the outcomes of these meetings are known.

    Tax clinics

    Tony Greco, Institute of Public Accountants; and Damien Browne, Assistant Commissioner, Review and Dispute Resolution, ATO

    Tony Greco raised this item for members to discuss the details of the proposal and to understand the ATO’s involvement and the role it will play in the proposed Tax Clinics.

    Damian Browne provided an overview of the program:

    • the trial of a National Tax Clinic program was announced by Prime Minister Scott Morrison in November 2018. The tax clinic trial is based on (and includes) the Curtin University tax clinic, which offers student volunteers the opportunity to work with unrepresented taxpayers under the direct supervision of qualified tax professionals
    • the trial will see ten tax clinics set up and run by Australian universities to support taxpayers by providing general tax advice and help them with their tax obligations and reporting requirements
    • the tax clinics will advise and support lower-income and unrepresented individuals and small businesses on a pro-bono basis to help them understand and meet their tax obligations, and provide assistance in addressing their tax problems and disputes, whilst at the same time helping build practical experience for students as the future of the tax profession. The clinics will also help to raise awareness and understanding of tax issues including through educational activities
    • the aim of the National Tax Clinic trial is to fill a gap in the market for unrepresented, low income or vulnerable individuals and small businesses that may not be able to afford professional advice and representation. In this way, the trial is designed to complement the ATO's existing range of help and support services for unrepresented taxpayers, such as our Tax Help community volunteer program and the Dispute Assist service.

    The Government has tasked and funded the ATO to administer the trial. The ATO’s role as administrators is limited and does not include being involved in the day to day operation of the tax clinics. The ATO will also support the Tax Clinics through cross-referral and connection to services such as Dispute Assist and In House Facilitation. The ATO will coordinate an independent evaluation process for the trial and reporting back to Government with recommended options and approaches for the program beyond 2019.

    The ATO will share with NTLG members a handout of the information, background and a list of universities involved in the program.

    Action item


    Due date




    Trial of the National Tax Clinic program

    NTLG secretariat to circulate to NTLG members a handout of the information and background including a list of universities involved in the trial of the National Tax Clinic program.

    Post meeting update: The handout on the National Tax Clinic program was provided out-of-session to members on 18 March 2019.

    Banking Royal Commission

    Tim Neilson, The Tax Institute; Alex Affleck, Assistant Commissioner, Tax Counsel Network, ATO; and Deborah Boyd, Assistant Commissioner, Tax Counsel Network, ATO

    Tim Neilson raised this item to request an update on ATO’s approach to possible compensation payments that may arise out of the Banking Royal Commission.

    The ATO advised that there are some historical public rulings that are relevant to the taxation implications concerning compensation payments including:

    • TR 95/35 concerning the CGT implications for compensation receipts
    • TR 2010/1 concerning contributions made to a superannuation fund
    • GST 2001/4 concerning the GST consequences of a court order or out-of-court settlement.

    The ATO has worked with financial institutions when they have needed guidance in previous situations when issuing compensation payments. In October 2018, guidance was issued on the ATO website about compensation paid to individuals from financial institutions.

    There have been recent discussions with the Association of Superannuation Funds of Australia and the Financial Services Council to work through different scenarios for payments made directly to a superannuation fund with an area of focus being the interaction with the superannuation contribution cap rules.

    Tim Neilson queried if there will be a rollout of information for individuals. The ATO noted it has worked with the financial institutions on how the ATO can help to get the information to individuals.

    Other business

    Sandra Roussel, Assistant Commissioner, Enterprise Strategy and Design

    Update on members’ feedback on the effectiveness of NTLG

    Sandra Roussel thanked members for the feedback on the operation and effectiveness of the NTLG. Members indicated the intent of the charter is being met with a strong positive message about the value of the NTLG. Members’ feedback also identified opportunities to enhance members’ discussion of issues and the administrative processes that support the NTLG.

    Sandra Roussel asked members for their views about guest attendees and the value they provide. Members noted that guests are important but should be connected to an agenda item. Members can nominate guest attendees at the time of suggesting agenda items.

    Other points raised:

    • distribution of outcomes from meetings - Members stated that messages from the meetings are usually conveyed to their organisations’ members once the key messages are available.
    • members would like to see a one paragraph summary of the agenda items so they have a better sense of what the item is about and why it is being raised
    • it was suggested that at the end of the meeting members provide their key takeaways from the day.

    Compensation for Detriment caused by Defective Administration (CDDA) in relation to the Australian Taxation Office and Small Business

    The Government has appointed Mr Robert Cornall AO to lead a review of the Scheme for the Compensation for Detriment Caused by Defective Administration (the CDDA Scheme) in relation to the ATO and small business.

    Robert Cornall has approached the Small Business Stewardship Group for members to provide feedback on the review. The review is to be finalised by 30 June 2019.

    Members noted that their associations would be providing submissions to the review.

    NTLG action item update

    All members

    Grant Wardell-Johnson invited members to provide a status update on the following open NTLG action items:

    • NTLG 1703/1 – Impact of taxpayer alerts on large corporates and how the Taxpayer Alert system may be improved to manage unwanted impacts
    • NTLG 1811/1 – Cryptocurrencies
    • NTLG 1811/2 – Explanatory memoranda
    • NTLG 1811/3 – ATO/Treasury engagement with FIRB applicants
    • NTLG 1811/4 – Legal Professional Privilege in taxation advice and services – scope and guidance.
      The ATO noted that a list of members for the Legal Professional Privilege working group will be provided to NTLG members as soon as possible.

    Members agreed that all the NTLG action items can be closed.




    Australian Taxation Office

    Andrew Mills, Second Commissioner, Law Design and Practice (Co-chair)

    Jeremy Hirschhorn, Second Commissioner, Client Engagement

    Sandra Roussel, Assistant Commissioner, Enterprise Strategy and Design

    Justen Nixon, Senior Technical Adviser, Tax Counsel Network

    Robyn Theacos, Director, ATO Consultation Hub, Enterprise Strategy and Design (Secretariat)


    Paul McCullough, Division Head, Corporate and International Tax Division, Revenue Group

    Chartered Accountants Australia and New Zealand

    Grant Wardell-Johnson (Co-chair)

    Michael Croker

    Corporate Tax Association

    Michelle de Niese

    CPA Australia

    Paul Drum

    Institute of Public Accountants

    Tony Greco

    Law Council of Australia

    Adrian Varrasso

    Clint Harding

    The Tax Institute

    Tim Neilsen

    The Tax Institute – Professional Bodies' Coordinator

    Stephanie Caredes





    Maryanne Mrakovcic, Deputy Secretary, Revenue Group

    The Tax Institute

    Bob Deutsch

      Last modified: 07 May 2019QC 58590