Preparation, scoping and agility are essential - The ATO’s in-house facilitation

The ATO’s in-house facilitation aims to provide rapid resolution of disputes with the assistance of experienced ATO personnel working as independent facilitators.

The ATO’s independent facilitators are neither judge nor arbitrator and cannot decide a matter. Their role is limited to helping the parties find a pathway to an outcome.

In this article, originally featured in Taxation in Australia, the Institute's member journal, Chris Wallis, CTA, (Victorian Bar) notes that as the ATO’s in-house facilitation model matures, and awareness of its accessibility increases, practitioners need to be aware of:
  • the duty to make clients aware that facilitation is a valid option;
  • the opportunities that facilitation
  • presents; and
  • the traps for the unwary.
Chris also takes part in the panel session 'ATO’s In-House Facilitation', alongside Lillian Howes, at October's Tasmanian State Convention, facilitated by Paul Conde, CTA.

In his article, Chris examines the ATO’s in-house facilitation process and how that process might be used to generate solutions to seemingly intractable problems quickly, economically and efficiently by allowing for an agreed narrowing or confining of the issues. The article identifies the basic requirements for a successful facilitation and observes that facilitation does not provide a soft option for a lazy or under-prepared practitioner.

The article considers a range of disputes that have been addressed within facilitation, examines two difficult disputes handled within the process in more detail, and highlights the importance of a well-chosen facilitator while identifying problems that still exist within the facilitation model. The article concludes by identifying some traps for the unwary and noting that facilitation is more than the horse-trading exercise some assume it to be.

Chris covers issues related to:

  • The parties at facilitation
  • The basic requirements for successful participation in facilitation,
  • How facilitation allows taxpayers to minimise costs
  • Preparing for facilitation, and
  • Making facilitation more accessible.
He also looks at the long-running Little Joe Rigoli saga, which commenced in the Administrative Appeals Tribunal (AAT) in September 2011 and concluded on 15 March 2016 (after 21 hearing and decision days, before a total of seven judges and one senior member of the AAT.

In his conclusion, Chris notes that while every practitioner has a duty to make their client aware of facilitation, any practitioner considering facilitation will require appropriate instructions from their client.

The results of facilitation may look like the results of “horse trading”. However, a result at facilitation must be principles-based. 

While the parties might agree that $x is a fair outcome, they need to identify the principles that underpin an outcome and allow the outcome to be documented.

Participation in facilitation is relatively informal and can be an alternative to hearings at the AAT or in the Federal Court, but it is not an option for lazy practitioners unwilling or incapable of making a
significant investment in the process.

Chris advises practitioners to consider carefully the advantages and disadvantages of addressing substantive issues, administrative penalties, GIC and debt recovery aspects in the single facilitation.

It may be more appropriate to split the issues so as to keep ATO debt out of the initial facilitation. Everyone takes something home It is useful to ensure that the stakeholder and the ATO decision-maker have a strategic “win” on the day.

You can view the full article here.

At October's 2018 Tasmanian State Convention, Chris joins Lillian Howes (ATO) for the panel session 'ATO’s In-House Facilitation', facilitated by Paul Conde, CTA (Tierney Law).

This panel discussion on the ATO’s In-House Facilitation (IHF) program features two experienced practitioners – Lillian Howes, Executive Director in the Review and Dispute Resolution business line and an experienced ATO in-house facilitator, and Chris Wallis, of the Victorian Tax Bar, who has represented clients in many IHFs.

Both are passionate advocates for alternative dispute resolution in tax matters. 
The session will help delegates understand when the IHF process may assist resolution, what is involved in initiating the IHF process, and the stages involved in a dispute. It will also highlight the need to develop a saleable solution, which issues can be addressed, why preparation and creativity are essential, and look at “without prejudice” discussions, the s166 dilemma, and dealing with difficult participants. Find out more on our website.
Chris Wallis, CTA, of the Victorian Bar,
commenced practice as a Barrister in
1991 and 27 years later has a strong,
no-nonsense reputation throughout
Australia in the fields of equity and
revenue law. 

Chris’s focus is on keeping clients out of the Administrative Appeals Tribunal and courts using attention to detail and negotiation to secure certainty for clients at the earliest opportunity, a focus which has involved him in numerous in-house facilitation sessions. Chris is a regularly published author and a member of the Editorial Board of the Australian Tax Law Bulletin and also of the Australasian Tax Teachers Association (ATTA). Chris presents regularly throughout Australia for the professional bodies and ATTA, and has completed studies in international tax.

This article is taken from Taxation in Australia.

Written by practitioners for practitioners, Taxation in Australia is continually ranked as Australia's leading tax journal.

Published 11 times per year and available exclusively to members in hard copy and digital format, this comprehensive publication features articles with a strong, practical approach to the latest tax issues and professional development.
Members, you can access the latest articles online  here.
Not a member? Find out more about the  benefits membership of The Tax Institute can deliver for your role.


See all

Follow Us