Stewart v The Deputy Commissioner of Taxation [2011] FCA 336

Procedural Posture

Application for Judicial Review of ATO Decisions Granting Audit Teams Access to Confidential Accounting Advices / Final Hearing and Judgment

Legal Issues

1. 1 ['Whether ATO decisions allowing audit teams access to accounting advices should be set aside for denial of procedural fairness.' "Whether the Commissioner's Guidelines to Accessing Professional Accounting Advisors' Papers applied to documents obtained by the ATO from the Australian Crime Commission rather than from the taxpayer or the taxpayer's external accountant." 'Whether the decision to grant access to documents was so unreasonable that no decision maker could have arrived at it.' "Whether decisions made under the Accountants' Concession guidelines were reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or more generally under the Judiciary Act 1903 (Cth)."]

Ratio Decidendi

The application failed because Mr Cornell and Mr Stewart were told that access was being considered on the basis of exceptional circumstances involving a Part IVA scheme or reasonable grounds to believe fraud or evasion, were invited to make submissions, and did make submissions; there was therefore no denial of procedural fairness, and the material before Mr Zdjelar meant the decision was not Wednesbury unreasonable. For Mr Hogan, the Accountants' Concession guidelines did not apply on their terms to documents already held by a third party such as the ACC and supplied to the ATO, and the ATO correspondence did not represent that the guidelines would apply; accordingly there was no...

Court Disposition

Application dismissed with costs.

Orders

• ['The application be dismissed with costs.']