About the program
The test case litigation program funds cases that have tax implications beyond the particular taxpayer dispute.
The program provides financial assistance to taxpayers to help them meet some or all of their reasonable litigation costs.
The funding criteria and expectations have been revised following a review of the program.
Funding criteria
For a case to be approved for test case litigation program funding, it must:
- involve issues where there’s uncertainty or contention about how the taxation or superannuation law operates
- be in the public interest to be litigated.
Uncertainty or contention about how the law operates means that either:
- the law is not clear and the issue hasn’t been clarified through the courts
- there is disagreement on what the law means or how it operates. This does not include disputes that depend solely or predominantly on questions of fact.
Expectations
In addition to meeting the funding criteria, we will consider whether your case:
- has either significance to a substantial section of the public, or significant commercial implications for an industry
- is likely to provide legal precedent as a principle of law, capable of being used to decide other cases with similar facts
- involves a tax avoidance scheme or a scheme to avoid superannuation regulatory provisions – funding will generally not be provided for tax avoidance, tax evasions or cash economy matters
- appears to be an attempt to gain a windfall or an outcome contrary to the intent of the legislation and public policy – funding is not provided where the outcome being sought is clearly not an outcome intended by the law.
In addition to these expectations, we will also consider:
- your financial capacity to pursue litigation
- whether you have demonstrated a willingness to progress the dispute in a timely manner
- your past and present compliance behaviour (for example, lodgment and payment history).
Cases before the Administrative Review Tribunal (ART) may be funded, subject to the above criteria and expectations, particularly if the matter:
- is to be heard by a presidential member or the Guidance and Appeals Panel
- involves issues that impact a large number of taxpayers, or a particular market segment (for example, small business), in relation to issues such as statutory interpretation
- required the Commissioner to engage external legal representation because of the significance or legal complexity of the matter.
How to apply
If you believe you meet funding criteria and expectations, you can apply for test case funding using the Application for test case litigation funding form (NAT 75585).
Applications are considered by a panel of 3 external experts and 2 senior ATO officers.
See the test case litigation register for:
- the next meeting dates and closing dates for applications
- a list of past and current cases approved for test case funding
- a list of cases declined for test case funding and the reasons why they were declined.
More information
For more information about the test case litigation program, you can:
- email us at ATOLitigationFunding@ato.gov.au
- phone us on 13 28 69 between 8:00 am and 5:00 pm, Monday to Friday, and ask for the test case litigation program
- write to
TEST CASE LITIGATION PROGRAM
AUSTRALIAN TAXATION OFFICE
GPO BOX 4889
SYDNEY NSW 2001