CAPITULO III 3. FACTORES GENERADORES DE RIESGOS
ESTADO DE ALERTA ROJA
5.41
Within the context of tax disputes, ADR practitioners need not necessarily be legally trained where the issues needing to be resolved turned on facts, rather than the law, and required some other area of expertise.223 For example, in disputes concerning conflicting expert valuations, a regarded expert specialising in valuations may be better placed to assist than someone who is legally trained but does not possess valuation skills and experience.5.42
However, it was noted that if the issue in dispute required the parties to discuss interpretation and application of the law, then an ADR practitioner who is legally trained with appropriate tax expertise may be better placed to assist as an understanding of the legislation was required.5.43
The ATO has noted that where external ADR practitioners need to be engaged, it seeks to ensure that the practitioner engaged is an ‘independent, impartial and neutral person who is sufficiently trained and experienced in ADR processes to conduct the particular ADR process agreed on by the parties or directed by the court or tribunal. The experience of the ADR practitioner must be sufficient to deal with the level of complexity or sensitivity of the particular dispute.’2245.44
Ultimately, the IGT is of the view that the ADR practitioner selected should be sufficiently skilled to ensure the integrity of the process, provide a balanced and open forum for discussions and develop trust and credibility with both parties.5.45
Statistics provided to the IGT show that by and large, ADR in tax disputes are conducted by registrars of the AAT or the Federal Court. The ATO has advised the IGT that where an ADR practitioner is not otherwise appointed by the Court, the ATO collaborates with the taxpayer and their representatives to select the most appropriate ADR practitioner. The IGT supports this collaborative approach, but notes that smaller taxpayers and advisers who may not often engage in ADR may not be familiar with ADR practitioners and are therefore not well-placed to make an informed decision.5.46
In this regard, the IGT considers that where the ATO is dealing with individuals or less sophisticated taxpayers (and especially those who are self-represented), the ATO should actively work to ensure that the taxpayer is aware of the different types of ADR practitioners available, their relative skills and experiences as well as the costs involved.5.47
The ATO has advised that it is currently in the process of updating its intranet site with a national list of organisations and agencies which may be able to assist in providing223 F. Dixon QC, above n. 85, p. 1.
details of ADR practitioners.225 It considers that such a list may assist its staff to better appreciate the different types of ADR available and who may be retained to assist in the resolution of a dispute. The ATO also intends to incorporate this information in its DMP to assist taxpayer access.
5.48
While the IGT acknowledges that this may go some way to assisting taxpayers and their advisers to make better informed decisions, a more general guide may yield greater benefit to taxpayers and their advisers. Accordingly, the plain-English guide referred to in paragraph 5.32 could also include a list of ADR practitioners and the types of disputes and ADR processes for which each may be best suited.R
ECOMMENDATION5.2:
The IGT recommends that the ATO consults with stakeholders on developing a plain-English guide which outlines:
different ADR processes which may be used in resolving tax disputes and the type of ADR practitioner that may be best suited for each ADR process;
examples of the types of disputes in which each technique may be appropriate;
details or information taxpayers should provide when seeking to initiate ADR with the ATO to enable both parties to assess the appropriateness of engaging in ADR, and what ADR process to employ;
ATO expectations of the taxpayers and what the taxpayer may expect from the ATO and other parties when participating in particular ADR processes;
the roles and responsibilities of the ADR practitioner in different types of processes; and
any other relevant matters.
In developing the guide, consideration should be given to whether a suite of pro-forma supporting materials should be included to assist the parties in dispute to quickly and easily reduce matters agreed to writing. Such supporting materials may include:
an ADR agreement which addresses each of the matters outlined in paragraph 49 of PS LA 2007/23 and other relevant matters;
a case summary which clearly identifies issues of fact and law that are in dispute and any matters which are outside the ambit of the ADR; and
a statement of matters agreed between the parties at the conclusion of the ADR.
225 For example, Lawyers Engaged in Alternative Dispute Resolution (LEADR), the Institute of Arbitrators and Mediators Australia (IAMA) and the Attorney-General’s Department’s Access to Justice website
ATO Response Agree.
The ATO has already discussed the possibility of co-designing such a guide with the NTLG ADR Sub-committee. In doing this we will also consult with the Inter-Agency ADR Forum and other relevant stakeholders. As part of the consultation process, we will consult on whether a suite of pro-forma materials would be useful and should be included in the guide.