Mantenimiento y limpieza de las boquillas

4.127

There was no clear consensus of any optimal time at which ADR should be engaged. Stakeholders were varied in their views as to when ADR is most effective and appropriate.

4.128

A submission noted that there were two critical points at which ADR may most effectively be applied. The first is at the very beginning of a dispute where the parties genuinely want to avoid litigation and the other being towards the end where both parties have retained Counsel and advisers who are able to cast fresh eyes over the dispute with a view to resolution.

4.129

Other submissions noted that the parties are able to consider ADR at any stage of the dispute, and as early as possible, even if only to enable the parties to agree (or agree to disagree) on facts. Some practitioners emphasised that for ADR to be effective it must occur prior to issuance of an objection decision as, once this occurs, the taxpayers and their representatives are completely focused on filing evidence to challenge the decision.

4.130

Statistics provided by the ATO from the ADR register notes that of 250 tax dispute cases which proceeded to ADR, 231 (92.4 per cent) were conducted during litigation at first instance. Of the remaining cases, 14 proceeded to ADR on appeal (from a decision of the AAT to the Federal Court or from a single judge of the Federal Court to the Full Court), one occurred during the objection stage and two during the pre-assessment period. The remaining two cases did not report data on this point.

4.131

It has been noted that the ATO has also traditionally looked at resolution of tax disputes after issuing a position paper but prior to issuing an amended assessment, as well as between lodgment of the appeal and the hearing.208 _{It has been posited that opportunities} exist for the ATO to consider resolution of tax disputes at other points in time, such as following lodgment of an objection but before commencement of any litigation.209

4.132

The point in time at which the parties should or could engage in ADR is dependent on a number of factors including the nature of the dispute, the parties to the dispute and the facts and evidence which are already in the parties’ possession or knowledge.

4.133

The IGT considers that there are a number of points throughout the compliance process during which ADR could be utilised. These points may include the time at which the facts have been agreed, position paper has been issued or at the objection stage.

4.134

The Part IVC process necessitates the taxpayer taking the first step in challenging a decision by way of objection and then litigation. In light of the requirements imposed by the CDRA 2011, it necessarily falls on the taxpayer as the potential applicant to take genuine steps to resolve the dispute prior to commencing action in the Federal Court. Equally, the

208 G. Williams and C. W. Jackson, ‘New Ways to Fix Tax Disputes’, Charter, June 2011, p. 50. 209 ibid, p. 51.

Commissioner as the respondent to these proceedings needs to be responsive to the efforts of the taxpayer.

4.135

To ensure a streamlined and expedited process, the IGT is of the view that the ATO should implement a process through which a taxpayer or their representative can quickly and easily engage the ATO in ADR (including direct negotiation) at different points in time during a dispute.

4.136

The ATO has advised the IGT that on some occasions, taxpayers have requested the ATO to engage in ADR without clear reasons as to the objectives sought. In these instances, the ATO has rejected ADR because it considered that engagement at that point in time would increase costs and delay resolution of the dispute overall.

4.137

Through review of the case files on the ATO’s electronic case management system, the IGT identified a case in which the taxpayer had not appreciated the nature of ADR and what it was designed to achieve. The IGT notes that the taxpayer sought to engage only as a means of providing further information to the ATO and to better understand its reasoning and position. As discussed earlier, with improved early engagement, such a situation could be avoided. In another case that the IGT examined, the request to engage the ATO in ADR was sufficiently detailed, with an annexure providing the reasons for the requested engagement as direct settlement negotiations had failed. This request was appropriately escalated to a relevant senior ATO management officer for consideration. At the time of writing this report, the case had not yet been finalised.

4.138

The above cases demonstrate the extremes of the range of taxpayer experience in engaging the ATO in an ADR process. To some extent it depends on the level of sophistication of the taxpayer. However a more uniform and improved experience for all taxpayers may be achieved by providing better information to the public as discussed in Chapter 5.

4.139

As ADR is a process which the parties must design for themselves to suit the dispute in question, it is undesirable to be too prescriptive in relation to when ADR should be entered. Rather, the IGT considers that it would be beneficial for the ATO to:

• affirm its commitment to ADR in relation to all taxpayers in the Taxpayer’s Charter so that taxpayers may hold ATO officers to account where engagement is denied without sufficient reason;

• adopt a process which favours engagement in ADR and implement a mechanism through which the taxpayer may request the ATO engage in ADR quickly and easily throughout the end-to-end process; and

• in consultation with external stakeholders, determine what guidance may be given to taxpayers regarding information needing to be provided when seeking to engage the ATO in ADR.

4.140

The IGT considers that the ATO should reflect and reinforce its commitment through corporate documents such as PS LA 2007/23 and the Taxpayers’ Charter, and provide guidance to taxpayers as set out in Recommendation 5.2 in the next chapter.

R

ECOMMENDATION

4.9:

Subject to the caveats previously outlined regarding when ADR may not be appropriate, the IGT recommends that the ATO consults with external stakeholders on developing a mechanism which enables taxpayers to request initiation of ADR (including direct negotiation) with the ATO, to wholly or partly resolve matters in dispute at the most appropriate point in time, such as:

 once agreement has been reached on the facts or both parties believe that the facts in contention have been sufficiently narrowed;

 prior to a position paper or reasons for decision being issued;

 after the position paper has issued but prior to the amended assessment;  prior to the lodgment of an objection; and

 prior to issuance of an objection decision.

Where the ATO considers that ADR is not appropriate, or not appropriate at a particular point in time, the reasons for the ATO’s view in this regard should be communicated to the taxpayer with an alternative as to how the issues concerning the taxpayer could otherwise best be addressed.

ATO Response Agree in part.

There will be situations where there is a dispute on a procedural or preliminary issue where informal or formal ADR processes are an appropriate way of progressing the matter.

In relation to questions of liability and entitlements, the ATO has statutory responsibilities and it is important that the community has confidence that the ATO is resolving cases

appropriately and with integrity. This requires a proper process to establish the facts so as to make a proper assessment of taxpayers’ liabilities or entitlements.

In the larger, more complex cases, it is often only after the issue of a position paper that we have a considered articulation of facts and law to enable us to consider the appropriateness of a formal ADR process.

We agree that any decisions with respect to ADR should be clearly communicated to taxpayers. However, taxpayers might want to take their own advice as to how they wish to progress their dispute. We would of course share with them possible alternatives if they were prepared to engage with us.

In document Performance Series 1650e (página 23-124)