Publication of ATO written binding advice

This Law Administration Practice Statement should be read in conjunction with Law Administration Practice Statements PS LA 2001/4, 2001/5 and 2001/8 and the ATO Advice Manual.

To improve integrity, transparency and accountability, the ATO publishes edited versions of all written binding advice provided to taxpayers in the Register of Private Binding Rulings (the Register) on the ATO assist website: http://ato.gov.au. Written binding advice is defined as: • private rulings (including GST specific private rulings - see Law Administration Practice Statement PS LA 2001/4); • administratively binding advice; and • advice on the new tax system issued under Law Administration Practice Statement PS LA 2001/4.

The ATO publishes edited versions of written binding advice issued in response to applications received after 31 March 2001 (except for GST specific private rulings). The ATO publishes edited versions of GST specific private rulings issued in response to applications received after 30 June 2001.

The published edited version must be comprehensible and accurately reflect the written binding advice given. The edited version is to include the Explanation/Reasons for Decision.

The text of any written binding advice published in the Register will be edited to remove or replace any information that is likely to enable the identity of any taxpayer or entity to be ascertained or would constitute a breach of confidence.

Where all the material facts cannot be set out in the written binding advice, the case officer must include a summary of those facts in the written binding advice. The practice of incorporating supplied documents by reference is not sufficient without such a summary.

In addition to preparing written binding advice to the taxpayer, case officers must also prepare an edited version that is comprehensible, accurately reflects the advice and removes or replaces information that: • specifically identifies a taxpayer or any other entity; • may enable the identity of a taxpayer or any other entity to be ascertained; or • is confidential in nature.

In some exceptional cases, it may not be possible to accurately reflect the issues and the decision without identifying the taxpayer or any other entity. In these cases, a summary of the case in general terms must be prepared and this will be the edited version.

Attachment A sets out guidelines for editing written binding advice.

The case officer must consider all submissions made by the taxpayer about the content of the edited version. Taxpayers may make submissions either at the time they request advice or after receipt of the edited version. They will be given the opportunity to seek a further review if they do not agree with the version that the ATO proposes to publish. The case officer is required to document the reasons for not agreeing with a taxpayer's submissions.

The case officer must refer both the original and edited versions of the written binding advice to their authorised approving officer for approval.

In approving the issue of the written binding advice and the edited version, each authorised approving officer must ensure that the edited version: • has been edited in accordance with this Law Administration Practice Statement; and • is comprehensible and accurately reflects the written binding advice.

The case officer must ensure that the authorised edited version is sent to the taxpayer for comment at the same time as the written binding advice is issued.

If the taxpayer does not provide comments within 28 days from the issue date of the written binding advice, the edited version will be referred for publication in the Register.

If the taxpayer provides comments on the edited version, these will be considered by the Practice Management Unit (PMU). The PMU will apply the guidelines set out in Attachment A in considering such comments and advise the taxpayer of its decision. The PMU must liaise with the case officer and authorised approving officer when considering substantive issues raised by a taxpayer.

If a further edited version is prepared, the PMU must send this version to the taxpayer. If the taxpayer does not respond within 28 days from the date of issue of the revised edited version, it will be referred for publication in the Register.

If a taxpayer does not agree with the decision of the PMU, the taxpayer may make a written request for a further review of the decision by the ATO within 28 days of the issue of the revised edited version. The ATO will refer the request to the Publication Advisory Committee (PAC) via the PAC Secretariat, located within the Office of the Chief Tax Counsel (OCTC). The PAC Secretariat will ensure that appropriate documentation is referred to the PAC. The PAC will consider the taxpayer's submissions and make recommendations. The PAC will include members from outside the ATO.

OCTC will consider the PAC recommendations and make a decision about the form in which the written binding advice will be published. The PAC Secretariat will advise the taxpayer of the decision and the reasons for it and provide the taxpayer with a copy of the version that will be published after 14 days from the issue of the advice. The PAC Secretariat will notify the PMU of the decision and the PMU will then notify the case officer and authorised approving officer.

Attachment B describes the process for issue, review and publication of the edited version of written binding advice.

The Commissioner's general power to administer taxation laws includes the power to publish advice.

Taxation laws, including section 16 of the Income Tax Assessment Act 1936 , impose a number of secrecy obligations on ATO officers that restrict the flow of information. Further obligations to protect the privacy of individual taxpayers are imposed by the Privacy Act 1988 ('Privacy Act'). With the introduction of a publicly accessible Register containing edited versions of written binding advice, ATO officers must take particular care to ensure that taxpayer information and identity are protected.

ATO officers must follow a 3 step approach in performing the editing process. These 3 steps involve the removal or replacement of: • the primary identifying details of all taxpayers and other entities; • other information that may enable a taxpayer's or any other entity's identity to be ascertained; and • other information which may be confidential.

The tax effectiveness of arrangements will not, of itself, be accepted as providing a basis for a claim of confidentiality (see, for example, O'Brien v Komesaroff (1982) 150 CLR 310) although identifying information and other facts which may enable identification must still be removed or replaced.

The Register will provide a public historical record of all edited written binding advice issued by the ATO for reasons of integrity, transparency and accountability. The Register will not be updated to reflect changes in the law, withdrawal of advice or any other changes.

The written binding advice provided to a taxpayer will be binding on the Commissioner, either legally or administratively, in accordance with the principles outlined in Law Administration Practice Statement PS LA 2001/4. However, the Commissioner will not be bound by the edited version in relation to any taxpayer.

The ATO publishes a separate database that will provide guidance on the ATO's interpretation of the law. These are known as ATO Interpretative Decisions (see Law Administration Practice Statement PS LA 2001/8).

Editing officers must seek advice from their PMU where: • a taxpayer states that information it provides to the ATO is 'in-confidence'; • a taxpayer does not consent to information being published on the basis that it is confidential or of commercial value; • the information appears to be confidential; and • the inclusion of the information in the edited version is necessary for it to be a comprehensible and accurate reflection of the written binding advice.

Where appropriate, PMU officers should seek advice from the Office of the Chief Tax Counsel regarding such claims of confidentiality.

The tax effectiveness of arrangements will not, of itself, be accepted as providing a basis for a claim of confidentiality (see, for example, O'Brien v Komesaroff (1982) 150 CLR 310). Such arrangements must be described in the edited version of the written binding advice and must still be edited in accordance with the other requirements of Steps 1 and 2 to protect the identity of the taxpayer(s).