Corporate board advice concession

The corporate board advice concession is an administrative concession we have granted in respect of advice for a corporate board on tax compliance risk. This is the information within a document created:

  • by advisers (being suitably qualified in-house or independent advisers)
  • for the sole purpose of providing advice or opinion to a corporate board (including properly constituted sub-committees) relating to a major transaction, arrangement, corporate system or process      
    • on the likelihood and impact of the tax compliance risk
    • as to whether the ATO or an administrative or judicial decision making authority may take a contrary view or position to that of the taxpayer on the tax compliance issue, or
    • for courses of action to effectively manage the tax compliance risk.

We will seek access to these documents only in exceptional circumstances, such as when:

  • you have not cooperated or are not cooperating with the ATO to provide full and complete information in a timely manner and the advice or information subject to a claim for the concession is considered relevant to the compliance activity (relevance is a matter for the ATO to determine)
  • information important to the compliance activity, including evidence as to the purpose for entering into or carrying out a transaction or arrangement, cannot be sufficiently established from your documents and other enquiries
  • you have a history of serious non-compliance, for example, involving fraud or evasion or persistent avoidance of your tax obligations, or are under investigation in that regard
  • the Commissioner has reasonable grounds to believe that an anti-avoidance provision may apply
  • you have a demonstrated history of aggressive tax positions that the ATO has significant concerns about.

The decision to lift the protection under the corporate board advice concession must be made by a designated senior officer. The decision will specify the nature of the exceptional circumstances we intend to rely on. In most cases, we allow you an adequate opportunity to respond before the decision is made.

Some advice for a corporate board on tax compliance risk may also be subject to claims for legal professional privilege or the accountants’ concession. In these circumstances, claims regarding the documents in dispute will generally be evaluated in the following order:

  • legal professional privilege
  • accountants’ concession
  • corporate board advice concession.

The corporate board advice concession does not cover documents:

  • prepared for a reason other than providing advice, but attached to that advice
  • merely labelled as advice, but which identify a transaction.

Under the corporate board advice concession, redaction is possible if the advice is for the sole purpose of advising the board on tax risk.

For more about our policy regarding ATO access to advice for a corporate board on tax compliance risk, refer to PS LA 2004/14 ATO access to advice for a corporate board on tax compliance risk

A form for claiming the concession is available via Claim for concession on ATO access to advice for a corporate board on tax compliance risk.

    Last modified: 26 Jul 2016QC 37592