Chemical Trustee Limited and and and and and Commissioner of Taxation
[2013] AATA 623
[2013] AATA 623
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3604
Re
Chemical Trustee Limited
APPLICANT
And
Commissioner of Taxation
And
RESPONDENT
Chief Executive Officer, AUSTRAC
JOINED PARTY
File Number(s)
2012/3605
Re
Hua Wang Bank Berhad
APPLICANT
And
Commissioner of Taxation
RESPONDENT
File Number(s)
2012/3607
Re
Derrin Brothers Properties Limited
APPLICANT
And
Commissioner of Taxation
And
RESPONDENT
Chief Executive Officer, AUSTRAC
JOINED PARTY
File Number(s)
2012/3610
Re
Bywater Investments Limited
APPLICANT
And
Commissioner of Taxation
And
RESPONDENT
Chief Executive Officer, AUSTRAC
JOINED PARTY
File Number(s)
2012/3618
Re
Southgate Investment Funds Limited
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal The Hon. B J M Tamberlin QC, Deputy President
S E Frost, Deputy President
F J Alpins, Deputy PresidentDate 30 August 2013 Place Sydney The Tribunal sets aside the previous decisions which are the subject of these review applications and substitutes its decisions on the claims for exemption of the documents set out in “Annexure A” to these reasons. With respect to the remainder of the documents in issue, the Tribunal stands the matters over to a date to be fixed.
..................[SGD]......................................................
The Hon. B J M Tamberlin QC, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – Request for access to documents – exempt documents - claims for exemption pursuant to ss 33, 37 and 38 of the Freedom of Information Act 1982 (Cth) – damage to international relations of the Commonwealth - whether documents divulge information communicated in confidence by a foreign government, authority of a foreign government or international organisation to the Commonwealth – whether prejudices or discloses investigative procedures – whether discloses “protected information” - decisions under review set aside and substituted decisions made.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth); ss 30(1A), 35, 35(2)
Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth); s 125
Freedom of Information Act 1982 (Cth); ss 4(1), 15, 15(7), 15(8), 11A, 11A(3), 11A(4), 22, 23, 31B, 33, 33(a)(iii), 36, 37, 37(1)(a), 37(2), 38, 54L, 54W(b), 57A(1)(b), 61(1)(b)
International Tax Agreements Act 1953 (Cth)
Income Tax Assessment Act 1936 (Cth); ss 263, 264Taxation Administration Act 1953 (Cth); Pt IVC, Sch 1 s 355-25, Sch 1 s 355-30, Sch 1 s 355-30(1), Sch 1 s 355-45, Sch 1 s 355-50(1), Sch 1 s 355-50(2), Sch 1 s 355-155, Sch 1 s 355-265
CASES
Secretary, Department of Prime Minister and Cabinet v Mohamed Haneef [2010] FCA 928
Deputy Commissioner of Taxation v Chemical Trustee Limited (No. 8) [2013] FCA 494
JWHL and Commissioner of Taxation [2012] AATA 337
SECONDARY MATERIALS
Principles for Information Exchange Between Financial Intelligence Units for Money Laundering and Terrorism Financing Cases, The Hague, signed 13 June 2001
Convention Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, Canberra, signed 21 August 2003
Explanatory Memorandum, Tax Laws Amendment (Confidentiality of Tax Payer Information) Bill 2010 (Cth)
REASONS FOR DECISION
The Hon. B J M Tamberlin QC, Deputy President
S E Frost, Deputy President
F J Alpins, Deputy President30 August 2013
INTRODUCTION
These proceedings are applications for review of decisions made in respect of requests made by Chemical Trustee Limited (“Chemical Trustee”), Hua Wang Bank Berhad (“HWBB”), Derrin Brothers Properties Limited (“Derrin Brothers”), Bywater Investments Limited (“Bywater”) and Southgate Investment Funds Limited (“Southgate”) for access to documents under the Freedom of Information Act 1982 (Cth) (the “FOI Act”).
Each of the Applicants’ requests under the FOI Act were made in the context of assessments issued to them as a consequence of audits conducted by the Commissioner as part of “Operation Rubix”, which is an ongoing project of the Australian Taxation Office (“ATO”) within “Project Wickenby”. Project Wickenby is an Australian cross-agency task force involving agencies including the ATO and the Australian Transaction Reports and Analysis Centre (“AUSTRAC”) concerned with countering international tax fraud, evasion and avoidance. Operation Rubix is concerned with examining offshore arrangements involving Australian residents or Australian-sourced profits and addressing non-compliance with Australian taxation laws in that regard.
The assessments issued to each of the Applicants are currently the subject of proceedings brought under Pt IVC of the Taxation Administration Act 1953 (Cth) (the “TAA”) in the Federal Court. The hearing of those proceedings is due to commence on 16 September 2013. The Applicants have also brought Pt IVC proceedings in the Tribunal, which are yet to be heard. Related recovery proceedings have been brought by the Deputy Commissioner of Taxation, which have already been the subject of Federal Court judgments.
PROCEDURAL HISTORY
Freedom of Information requests
It is convenient first to set out the details of the requests made under the FOI Act that resulted in the decisions under review. On 17 October 2011, the ATO received five requests made under s 15 of the FOI Act by Mr Vanda Gould on behalf of each of the Applicants seeking access to documents of the ATO pursuant to s 11A of that Act (the “FOI requests”). The FOI requests made on behalf of Chemical Trustee, Bywater and Derrin Brothers sought access to the following documents:
“All documents requested pursuant to this applicant between 2000 to date.
In this request ‘document’ has the meaning given to it in the Dictionary of the Evidence Act 1995 (Cth).
1. Documents contained in the files of documents held by the Commissioner in relation to any decision, opinion or satisfaction (howsoever described) that relate to the Taxpayer.
2. Any documents which the Commissioner relied on in making a decision to initiate or pursue any recovery action being Federal Court of Australia matter 887 of 2010 in respect of the Taxpayer.
Other documents
3. Without limiting the scope of the documents identified in paragraphs 1 and 2 above, please include the following:
a. ATO communications or notes with third parties relating to the Taxpayer.
b. communications between the Taxpayer and alleged Australian controllers of the Taxpayer.
c. minutes of meeting, file notes or other written records or electronic records of meeting or communications (including emails) between Australian Taxation Office officers, or between Australian Taxation Office officers and other representatives of the Australian Taxation Office relating to the Taxpayer.”
The FOI requests made on behalf of Southgate and HWBB concerned documents described in identical terms, save that paragraph 2 of Southgate’s request referred to “Federal Court of Australia matter 888 of 2010” and paragraph 2 of HWBB’s request referred to “Federal Court of Australia matter 672 of 2010”.
By agreement, the categories of documents the subject of each of the FOI requests were subsequently narrowed in accordance with e-mail correspondence sent on behalf of the Applicants, as follows:
“Exclude any documents already provided to the taxpayers under the ‘notices to produce’
Exclude any documents that the taxpayer supplied to the ATO
Exclude any correspondence or decision papers that the ATO has already sent to the applicants
Exclude any draft copies of correspondence/position papers
Exclude from scope any publicly available documents
Include only the final chain of emails in any email trains (so if there were 8 emails in a chain of emails the ATO would only need to supply the final train containing all 8, not the train containing 7, 6, 5, 4, 3, 2 and 1 email)
Exclude any documents received or created after the commencement of Federal Court proceedings against the taxpayers in 2010 (but do not exclude documents received from, or created by, other government agencies after the commencement of Federal Court Proceedings).
The taxpayers are further content for all documents that were created or received after the commencement of the Federal Court proceedings, and subject to legal professional privilege, to be excluded without there being any necessity for these documents to be considered, redacted, and scheduled. However the taxpayers make an exception for documents received from other government agencies after the commencement of the Federal Court Proceedings. We request that these documents be scheduled.”
The decisions under review
Each of the decisions under review was made by Ms Nicole Dann, an officer of the ATO duly authorised to make decisions in respect of requests for access to documents made to the ATO pursuant to s 23 of the FOI Act. For the most part, Ms Dann’s evidence is addressed later in these reasons. Mr Matthew Evans, an auditor in the Serious Non-Compliance business line of the ATO assisted Ms Dann by locating and collecting documents potentially within the scope of the FOI requests, that business line being the only one which identified documents potentially within their scope. Ms Dann reviewed those documents to ascertain whether they fell within the scope of the FOI requests and whether any exemptions under the FOI Act applied so as to affect the Applicants’ right to access to those documents.
Given the possible application of the exemption in s 33 of the FOI Act (which we address later in these reasons), the ATO consulted with Her Majesty’s Revenue & Customs in the United Kingdom (“HMRC”), seeking its views about the FOI requests, particularly whether disclosure of documents within the scope of the requests which had been provided by HMRC to the ATO “would, or could reasonably be expected to, cause damage to … the international relations of the Commonwealth” for the purposes of s 33(a)(iii). By letter dated 24 February 2012, HMRC expressed the view that disclosure by the ATO of information provided by HMRC under cover of the UK/Australia Double Taxation Convention “could undermine future relations between HMRC and the ATO in similar cases” and requested that the respondent not release such information
Ms Dann then made a decision in respect of each of the FOI requests, notice of which were each given by letter dated 29 February 2012. Ms Dann decided, in relation to:
(a)Chemical Trustee’s FOI request, having identified 392 documents within its scope, to give access to 224 documents, in accordance with s 11A(3) of the FOI Act (“full release”), to refuse access to 34 documents on the basis that they were exempt documents for the purposes of Pt IV of the FOI Act (see ss 11A(4) and definition of “exempt document” in s 4(1) of the FOI Act) (“no release”) and to give access to edited copies of 132 documents modified by the deletion of exempt matter, being matter the inclusion of which caused the document to be an exempt document (see s 22 of the FOI Act and definition of “exempt matter” in s 4(1)) (“partial release”);
(b)Bywater’s FOI request, having identified 153 documents within its scope, that there would be full release of 58 documents, no release of 30 documents and partial release of 65 documents;
(c)Derrin Brothers’ FOI request, having identified 106 documents within its scope, that there would be full release of 35 documents, no release of 16 documents and partial release of 54 documents;
(d)HWBB’s FOI request, having identified 70 documents within its scope, that there would be full release of 33 documents, no release of 5 documents and partial release of 32 documents; and
(e)Southgate’s FOI request, having identified 143 documents within its scope, that there would be full release of 51 documents, no release of 43 documents and partial release of 49 documents.
It was stated in the decisions concerning Chemical Trustee’s FOI request and Derrin Brothers’ FOI request that the two remaining documents within the scope of the former (being documents numbered 225 and 226 in these proceedings) and the one remaining document within the scope of the latter (document 307) each contained information concerning an authority of a foreign government which was being consulted about the release of those documents (see ss 15(7), 15(8) of the FOI Act). Having determined that it was appropriate to extend the period for making a decision with respect to those documents, Ms Dann then decided that those documents would not be released to Chemical Trustee and Derrin Brothers; notice of those two subsequent decisions was given on 12 March 2012.
It follows that the Commissioner decided to refuse access to, or to give access only to redacted versions of:
(a)168 documents with respect to Chemical Trustee’s FOI request;
(b)95 documents with respect to Bywater’s FOI request;
(c)71 documents with respect to Derrin Brothers’ FOI request;
(d)37 documents with respect to HWBB’s FOI request; and
(e)92 documents with respect to Southgate’s FOI request.
Accordingly, the Commissioner’s decisions in relation to the Applicants’ FOI requests were unfavourable to the Applicants in respect of a total of 463 documents, either on the basis that they were exempt documents or contained exempt matter for the purposes of the FOI Act.
The documents before the Tribunal were numbered accordingly:
·Bywater’s application: documents 1–95 (inclusive);
·Chemical Trustee’s application: documents 96–263;
·Derrin Brothers’ application: documents 264–334;
·HWBB’s application: documents 335–371; and
·Southgate’s application: documents 372–463.
We note at this point by way of overview that Ms Dann decided that there would be no release or partial release of documents within the scope of the FOI requests regarded collectively on the basis that they were exempt documents or contained exempt matter for the purposes of ss 33, 37 or 38 of the FOI Act (see s 31B of the FOI Act). In many cases, more than one of those provisions or more than one subsection within or related to those provisions were relied upon in the alternative in respect of the same document.
In the case of most of the documents in issue, it was decided that they should be released in redacted form in accordance with s 22 of the FOI Act – that is to say, that they contained exempt matter rather than being exempt documents. Most commonly, documents in issue were said to contain exempt matter by operation of s 38 of the Act, particularly under the related provision s 355-25 in Sch 1 to the TAA, which concerns the confidentiality of taxpayer information and which we address later in these reasons.
However, in the case of the exemption under s 33, most of the documents in issue were said to be exempt in full. It was decided in the case of a number of those documents that they also contained exempt matter for the purposes of s 38, with the consequence that the primary contention of the Commissioner with respect to such documents was that they should not be released by operation of s 33 and the alternative contention was that they should be released in redacted form by operation of s 38. In the case of each of the documents said to be partially exempt under s 33, a claim for partial exemption was also made under s 38.
Review applications
On 22 March 2012, each of the Applicants applied to the Australian Information Commissioner pursuant to s 54L of the FOI Act for a review of the decision made on 29 February 2012 in relation to its FOI request.By letter dated 25 July 2012, the Information Commissioner informed the Applicants that he had decided not to undertake a review of those decisions, being satisfied for the purposes of s 54W(b) of the FOI Act that the interests of the administration of the Act made it desirable that the decisions be considered by the Tribunal, given that the FOI requests related to proceedings brought by the Applicants pending in the Federal Court. Consequently, the applications for review before the Tribunal were then made in respect of each of the FOI requests, pursuant to s 57A(1)(b) of the FOI Act.
The Chief Executive Officer of AUSTRAC was joined pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) by consent as a party to the proceedings brought by Chemical Trustee, Bywater and Derrin Brothers, contending that four of the documents in issue (documents 89 (Bywater’s application), 225 and 226 (Chemical Trustee’s application) and 307 (Derrin Brothers’ application)) are exempt documents by operation of s 33. We note that the Commissioner decided that one of those four documents (document 89) was exempt solely by operation of s 38 and therefore did not rely upon s 33 in the alternative at the time of making his decision with respect to Bywater’s FOI request. The Commissioner maintained that position at the hearing in this Tribunal with respect to document 89.
Internal review after decisions made
Following an internal review conducted by the Commissioner after the filing of his evidence, he formed the view that further documents or parts of documents could be released to the Applicants. Accordingly, counsel for the Commissioner indicated that, despite the decisions under review, the Commissioner would no longer press his claim that certain documents the subject of his decision were exempt or that certain material in those documents was exempt for the purposes of the Act and was prepared to consent to orders being made by the Tribunal to that effect.
Counsel for the Commissioner also indicated that arrangements had recently been made for each of the Applicants to provide what was referred to as “cross-authorisations”, by which each Applicant would consent to the others receiving otherwise “protected information” within the meaning of s 355-30 of Sch 1 to the TAA (which we address later in these reasons) about that Applicant contained in the documents in issue. Counsel indicated that, subject to the provision of one outstanding cross-authorisation, the Commissioner could release further documents or parts of documents to the Applicants, because the extent to which the exemption in s 38 concerning protected information would apply to the documents would be affected accordingly.
As a consequence of that internal review and the cross-authorisations (given and to be given), at the commencement of the hearing it followed that only 390 (of the 463) documents remained in issue, as the Commissioner no longer pressed his claim for exemption at all with respect to 73 of the documents.
Events at hearing
During the course of the hearing, the Commissioner conducted a further review of the documents remaining in issue. Counsel for the Commissioner stated that, as a consequence of that review, with respect to the 390 documents remaining in issue at the commencement of the hearing, the Commissioner was no longer pressing his claim for exemption with respect to some of those documents or some further material in those documents.
In particular, it followed that the following documents were no longer in issue, leaving 383 remaining:
·in Bywater’s application, documents 2, 28 and 72;
·in Chemical Trustee’s application, documents 99 and 223; and
·in Southgate’s application, documents 411 and 435.
The Commissioner was prepared to release further parts of documents 34, 35, 41, 43, 70 and 74, no longer claiming that they constitute exempt matter for the purposes of s 38 of the FOI Act. Those documents are all the subject of Bywater’s application, apparently because the review undertaken by the Commissioner during the hearing for that purpose was limited to that proceeding.
The Tribunal was provided with various versions of the 463 documents originally in issue. First, unredacted versions of all of the documents, which were made the subject of an order prohibiting their publication and disclosure pending the Tribunal’s determination, pursuant to s 35(2) of the AAT Act (see s 63 of the FOI Act). These were coloured white. Also, in the case of documents the Commissioner had decided to release in part, redacted versions of the documents as released to the Applicants upon the making of the Commissioner’s decisions. These were coloured blue. Further, redacted versions of relevant documents reflecting the Commissioner’s subsequent position following his internal review, to the extent it had changed and therefore resulted in reduced redactions. These were coloured green. Then, as relevant, versions of the documents with further reduced redactions, reflecting the Commissioner’s position as a consequence of the provision of cross-authorisations by the Applicants (being some of the redactions based on s 38). These were coloured pink. Lastly, in the case of redacted documents where the Commissioner had changed his position during the course of the hearing so that he was still claiming exemption but in relation to less material in those documents, versions reflecting those reduced redactions. These were exhibit “L” and were coded an orange colour.
It follows that, in respect of those documents where the Commissioner maintained his original position that they are fully exempt, there was a single (unredacted) version of such documents before the Tribunal. In the case of redacted versions, the number of such versions depended upon the extent, if any, to which the Commissioner had changed his position with respect to the amount of the material in such documents claimed to be exempt matter for the purposes of the FOI Act.
Representative documents
During the course of the hearing, the Commissioner reviewed the documents remaining in issue in these proceedings and selected 69 documents said to be representative of all of those documents, in that they comprehensively reflect all of the kinds of material contended by the ATO and also by AUSTRAC to be exempt under either ss 33, 37 or 38 of the FOI Act. The Commissioner prepared a schedule enumerating those representative documents and also indicating the documents containing duplicate content, which was tendered in evidence. This was exhibit “J”, which is reproduced as annexure “A” to these reasons. The parties consented to the representative documents being the subject of the Tribunal’s consideration and rulings, with documents with duplicate content to be treated accordingly. As is apparent from the annexure, in the case of some of the representative documents (as in the case of other documents in issue), the Commissioner and AUSTRAC contend that more than one exemption provision applies to that document or material contained in that document.
Ms Jane Woodward, the solicitor having carriage of these proceedings for the Commissioner, gave evidence by way of affidavit about the basis upon which the representative documents were selected. She explained that, with respect to the claims for exemption made under s 38, the documents the subject of Bywater’s application had been chosen as encompassing the greatest number of the same or similar kinds of documents as those the subject of the other applications. Accordingly, to the extent that the content of Bywater documents duplicated that of documents the subject of the other applications, the Bywater documents had been selected as samples. Documents the subject of other applications were selected to the extent that they fell within other categories of documents not within the scope of Bywater’s application, and examples of such kinds of documents were also selected as samples, so that they supplemented the Bywater documents so as to provide a comprehensive range.
For the claims for exemption under ss 33 and 37, representative samples of documents reflecting the different kinds of content in issue were again selected. Ms Woodward considers, based on her familiarity with the documents, that the schedule of representative documents reflects all categories of documents for the five Applicants, so that the Tribunal’s conclusions about the application of the exemption provisions to those documents can be applied to all remaining documents in issue. We accept her evidence.
RELEVANT PROVISIONS
Before addressing the evidence of witnesses called in these proceedings, it is appropriate at this point to set out the provisions governing the exemptions in issue in these proceedings so as to give context to that evidence.Section 33 relevantly provides:
“A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
.....
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government or the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”
Section 37 is relevantly in the following terms:
“(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
.....
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
....
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would reasonably be likely to, prejudice the effectiveness of those methods or procedures[.]”
Section 38 relevantly provides:
“(1) Subject to subsection (1A), a document is an exempt document if:
(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b)either:
(i) that provision is specified in Schedule 3; ...
...
(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.”
Schedule 3 relevantly enumerates ss 355-25 in Sch 1 to the TAA and 8WB(1)(c) of that Act. Section 355-25(1) in Sch 1 to the TAA provides that:
“An entity commits an offence if:
(a)the entity is or was a [..] taxation officer; and
(b)the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c)the information is [..]protected information; and
(d)the information was acquired by the first-mentioned entity as a taxation officer.”
The term “protected information” is defined in s 355-30(1) to mean information that:
“(a) was disclosed or obtained under or for the purposes of a law that was a [..]taxation law .... when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c)identifies, or is reasonably capable of being used to identify, the entity.”
There are various exceptions to s 355-25, including:
(a)if the information was already available to the public otherwise than as a result of a contravention of ss 355-25, 355-155 or 355-265 (s 355-45); and
(b)if the entity is a taxation officer and the record or disclosure is made in performing the entity’s duties as a taxation officer (s 355-50(1)) – one example given of such circumstances is where the record is made for, or the disclosure is to, any entity “for the purpose of enabling the entity to understand or comply with its obligations under a taxation law” (Item 6 in s 355-50(2)).
It is also relevant to note at this point that the Commissioner bears the onus of establishing that the decisions under review are justified, or that the Tribunal should give a decision adverse to the Applicants (see s 61(1)(b) of the FOI Act).
EVIDENCE
Evidence concerning Operation Rubix and exemption under s 37 of FOI Act
The Commissioner relied upon three affidavits affirmed by Ms Cathrine Jay, an ATO officer; one dated 30 January 2013 and two dated 13 May 2013. One of Ms Jay’s latter affidavits was the subject of an order made under s 35 of the AAT Act prohibiting its publication and disclosure other than to the Commissioner. Ms Jay was cross-examined, and also gave oral evidence for the assistance of the Tribunal in confidential session with respect to her confidential affidavit with only representatives of the Commissioner permitted to be present. The Tribunal has taken that confidential affidavit and evidence given in that session into account in making its decision in addition to Ms Jay’s other evidence.
Ms Jay is employed in the ATO’s Serious Non-Compliance Business Service Line (“SNC”). She has been in that position since February 2003. She explained that the SNC liaises with other sections of the ATO and also with external agencies in relation to the investigation and prosecution of taxpayers under taxation laws. Ms Jay said that the Applicants and several other entities have been audited by the ATO as part of Operation Rubix (the ATO’s ongoing project within Project Wickenby). Some of the audits have been conducted without notice, including those involving the Applicants. Ms Jay stated as a general matter that “Operation Rubix audits may be conducted covertly to avoid taxpayers learning the investigative methods and processes of the ATO” and specifically that the audits of the Applicants were done covertly (that is to say, without notice) to minimise the risk of dissipation of assets and destruction of evidence by the entities. Ms Jay noted that audits and other activities associated with the investigation of taxpayers were ongoing under Operation Rubix, there being about 20 audits in progress and about a further 20 audits yet to commence. It is anticipated that Operation Rubix audit activities may conclude within two years.
Ms Jay also gave evidence bearing on the question of whether relevant documents within the scope of the FOI requests are exempt or contain exempt matter for the purposes of s 37 of the FOI Act. In her first affidavit, Ms Jay had regard to the documents Ms Dann had decided were so exempt when making her decisions. Ms Jay stated that those documents were prepared in the course of, or for the purposes of the audits of the Applicants undertaken under Operation Rubix and that they contained information relating to “closed and ongoing compliance activities conducted as part of Operation Rubix by the ATO into actual or potential failures by the Applicants and other third party entities to comply with taxation laws”. She also explained the particular nature of that information, being relevantly for present purposes, that it discloses:
“strategies and audit methodologies considered and utilised by the ATO and other Project Wickenby agencies for conducting investigations, including the procedures for referral of matters between Project Wickenby agencies”.
Ms Jay’s evidence was that the release of those documents or the relevant information contained in them would “cause prejudice to the ATO in the conduct of its ongoing audits and audits that have not yet commenced of a breach or possible breach of a taxation law”. She added that “[f]urther, release of the documents could prejudice audit methods and procedures for detecting and dealing with matters arising out of breach of the taxation laws”, particularly by alerting taxpayers other than the Applicants who are the subject of Operation Rubix that they are currently being, or might in the future be, audited as part of that operation, with a number of negative potential consequences for its conduct and the conduct of other ATO compliance projects, which were enumerated in her first affidavit.
In her supplementary affidavit, Ms Jay stated that upon her subsequent review of the documents it had been decided were the subject of exemption under s 37, she now considered that the Commissioner should only maintain that position with respect to a single document, being a document the subject of Bywater’s FOI request (document 41). As we have indicated, at the hearing it was confirmed that the Commissioner now only claims that the exemption under s 37 applies with respect to that document. However, he now claims exemption under both s 37(1)(a) and s 37(2) (whereas previously only s 37(1)(a) had been relied upon in relation to that document). Ms Jay stated that most of the enumerated potential consequences of the release of the information in that document set out in her first affidavit remained applicable, both in terms of audits conducted under Operation Rubix, as well as audits conducted more generally. Under cross-examination, Ms Jay explained that, although document 41 was dated June 2010, such potential consequences remained extant.
Evidence concerning exemption under s 38 of FOI Act
The Commissioner relied upon the evidence of two witnesses with respect to the application of the exemption in s 38 of the FOI Act – Ms Nicole Dann and Mr Christopher Kirk. As we have indicated, Ms Dann made the decisions under review. Mr Kirk is a technical adviser in the SNC. Ms Dann gave evidence by way of affidavit and was not cross-examined. Her evidence concerned the FOI requests and the making of her decisions, and also how she came to make her decisions with respect to the application of the exemption in s 38 to the documents within the scope of the FOI requests.
With respect to the question of whether the documents were exempt under s 38 of the FOI Act by operation of s 355-25 of Sch 1 to the TAA, Ms Dann reviewed the documents within the scope of the FOI requests to ascertain whether they contained “protected information” for the purposes of s 355-30(1) of Sch 1 and also took advice from Mr Evans and Mr Kirk, as necessary. Ms Dann concluded that the documents within the scope of the FOI requests to which s 38 appeared to apply were documents obtained, disclosed or created for the purposes of Operation Rubix and that all of the documents provided to her by Mr Evans “contained information that was obtained or generated by the ATO [for] [sic] the purposes of administration of tax laws”.
With respect to whether the documents contained “protected information”, Ms Dann said:
“In ascertaining whether the documents contained information that identified or was reasonably capable of being used to identify an entity, I consulted with Mr Kirk or Mr Evans. This included whether a third party could reasonably be identified by combining the relevant information either with other information released in the particular document or other documents, or by virtue of the Applicants’ knowledge and dealings with each other and through Mr Gould.”
In her affidavit, Ms Dann also addressed the exception to the prohibition in s 355-25 concerning disclosure in the performance of a taxation officer’s duties (s 355-50(1) of Sch 1 of the TAA), stating in that regard:
“ ... I took into account information contained in the documents, such as consulting the Position Paper, to determine whether the disclosure of information was relevant to the taxpayer understanding their own affairs, and took advice from Mr Kirk in some circumstances. For example, information which was relied upon by the ATO in its audit of an Applicant is information which is more likely to assist the Applicant in understanding its taxation affairs, compared to information which was not relied upon by the ATO.
... Even where I considered that protected information could be disclosed on the grounds that to do so would be in the performance of an officer’s duties, on some occasions I did not release all of the information in the document, as disclosure of that information was not necessary to enable the particular Applicant to understand or comply with its obligations. ...
....
On the basis of my approach above, there are a number of documents some parts of which have been redacted.
… Where an entire document has been withheld from disclosure, I can confirm that I did so on the basis that the whole document related to a third party and there was not reasonably practicable way of redacting the document without disclosing the identity of a third party and still releasing something meaningful.”
In a supplementary affidavit affirmed shortly before the hearing, Ms Dann stated that she had undertaken a further review of the documents the subject of the proceedings and had thereupon realised that certain information contained in 25 documents the subject of the FOI requests had inadvertently been disclosed to the Applicants and ought not to have been disclosed given the application of s 38 of the FOI Act to those documents.
In her supplementary affidavit, Ms Dann also stated that, in the case of the 27 documents which she had decided were exempt or contained exempt matter under s 37 of the FOI Act, but where the Commissioner was no longer maintaining his claim for exemption under that provision (given Ms Jay’s review), she had reviewed such documents and remained of the view that those documents contained exempt matter by operation of s 38 of that Act.
Mr Kirk also gave evidence by way of affidavit; furthermore, he gave oral evidence about particular documents the subject of the proceedings, was cross-examined and responded to questions posed by the Tribunal. Mr Kirk explained that, through the particular involvement he has had in Operation Rubix, he has gained a general knowledge of that operation and of the main entities and promoters involved in the transactions the subject of Operation Rubix that have been identified to date.
Mr Kirk stated in his affidavit that, in assisting Ms Dann, he considered whether each of the documents the subject of the FOI requests had been acquired by an ATO officer in that capacity (for the purposes of s 355-25(1)(d) of Sch1 to the TAA) and whether the information in documents was “protected information” (for the purposes of s 355-25(1)(c) of Sch 1 of that Act). In the former regard, he confirmed for the purposes of the review proceedings that the documents in respect of which the Commissioner claimed exemption under s 38 on the basis that they constituted “protected information” were obtained and collated from Operation Rubix files created and maintained for the purposes of conducting audits of various entities including the Applicants and had been obtained or created by ATO officers in the course of the performance of their duties.
With respect to the criteria governing whether the information in those documents constituted “protected information” (as defined in s 355-10 of Sch 1 to the TAA), Mr Kirk stated in his affidavit that his general understanding of Operation Rubix had enabled him to assist Ms Dann in making her decisions by identifying where information in relevant documents the subject of the FOI requests related to the third parties and identified or could reasonably identify those parties for the purposes of paragraphs (b) and (c) of s 355-30(1) of the Schedule respectively. Furthermore, he stated that his knowledge of Operation Rubix remained sufficient to address the same question for the purpose of these proceedings.
Mr Kirk noted that for some documents it was clear on their face that they contained information relating to the affairs of entities other than the Applicant making the FOI request and identified such entities, while others did not do so but nevertheless the identity of other entities could reasonably be ascertained “from the context of the information contained in the documents and from reading the information in conjunction with the contents of the other documents”. Mr Kirk also considered whether such entities could be identified or were reasonably capable of being identified if (only) their names were redacted while leaving the rest of the document intact. The answer to that question varied as between documents, so that in the case of certain documents redaction of larger portions was required, containing information which was also reasonably capable of being used to identify such entities.
Under cross-examination, Mr Kirk said that he had approached the question of whether information in the relevant documents was “protected information” from the perspective of entities as individual entities, rather than in the context of their membership of a group. He also said that he had approached the question of whether the identity of an entity could be reasonably deduced (for the purposes of the definition of “protected information” in s 355-30(1) of Sch1) in terms of whether “a person with knowledge of some of the transactions may be able to identify some of the individuals concerned”, rather than from the position of any hypothetical person. He accepted that a consideration would be whether the Applicants, knowing what they could be assumed to know, would be able to deduce the identity of the third parties.
In response to a question posed by the Tribunal, Mr Kirk said that he had not specifically directed his attention to, nor advised Ms Dann about, the application of the exceptions to the prohibition in s 355-25 of Sch 1 with respect to the documents the subject of the FOI requests.
When asked under cross-examination about the fact that none of the documents identified as being within the scope of the FOI requests seemed to have originated from the Australian Crime Commission or other partner agencies, Mr Kirk said that he was not aware of the basis upon which any information was provided by the Australian Crime Commissioner or other partner agencies to the ATO as part of Operation Rubix, but made the general comment that the use that the ATO might make of information disclosed by such agencies depended upon the legislative basis upon which it had been so disclosed, which might be for purposes other than Operation Rubix.
Mr Kirk also gave further oral evidence for the assistance of the Tribunal in confidential session, with only the Commissioner’s representatives present. The Tribunal has taken that evidence into account in making its decision.
Evidence concerning exemption under s 33 of FOI Act
With respect to the application of the exemption in s 33 of the FOI Act, the Commissioner relied upon the evidence of Mr Brendan Shannon and Mr Thomas Karathanos, both officers of the ATO. Both were cross-examined.
At the time of swearing his affidavit, Mr Shannon was the acting Assistant Commissioner, International Engagement and Transparency Practice, Large Business and International line of the ATO. He is now the Senior Director, International Engagement at the ATO. Mr Shannon’s duties include managing ATO officers involved in the exchange of information with foreign revenue authorities under international taxation treaties; he also co-ordinates the ATO’s involvement in the Joint International Tax Shelter Information Centre (“JITSIC”), an international cooperative for the exchange of information relating to abusive tax schemes and for the development of methods designed to assist in countering such schemes.
Mr Shannon explained that the ATO identifies and verifies information concerning income which originates from or has been transferred to offshore locations by investigating relevant offshore transactions of Australian taxpayers, using information gathering and investigative resources available not only under domestic legislation but also under international agreements and treaties. In circumstances where the ATO is otherwise unable to obtain relevant information, it is necessary for the ATO to request such information from foreign revenue authorities, this process being known as an “exchange of information”.
Such an exchange of information occurs pursuant to the provisions of the relevant taxation treaty executed by the contracting states. The relevant treaty in force between Australia and the United Kingdom (both being members of JITSIC) is the Convention Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, otherwise known as the “UK/Australia Double Taxation Convention” (the “Convention”). The ATO and HMRC exchange information under the terms of that Convention (see Article 27).
Mr Shannon stated in his affidavit that, in his experience, where information is exchanged pursuant to the terms of a taxation treaty, it is “the established practice amongst revenue agencies globally” that exchanged information is to be used solely for the purpose or purposes for which it was disclosed unless consent is given to use it for other purposes. He said that it is also established practice that during the period of consultation preceding the completion of a request for the exchange of information, the revenue agency set to receive such information will provide an undertaking as to the use to which the information will be put. Where information is exchanged between the ATO and HMRC, it is subject to a range of privacy and security protocols.
Under cross-examination Mr Shannon said that it was general practice in the circumstances where the ATO received an FOI request which had within its scope information provided by a foreign revenue authority under a taxation treaty to seek the consent of that authority to the disclosure of that information, the information being treated “as if it’s still the property of the providing agency”.
Also under cross-examination, Mr Shannon confirmed that the ATO had sought HMRC’s consent with respect to documents provided by HMRC under the Convention within the scope of the FOI requests made by the Applicants and that HMRC had declined to consent to the disclosure of such information. He expressed the view that, as a general matter, HMRC would “greatly prefer[..]”, in the context of ongoing investigations that disclosure of such kinds of information not occur.
In his affidavit, Mr Shannon expressed the view, based on his experience in the exchange of information between revenue authorities, that any unauthorised disclosure or use of information exchanged under a taxation treaty would undermine the relationship of trust between the relevant revenue authorities and would also harm the ATO’s prospects of entering into such treaties for the exchange of information in the future. Furthermore, given that revenue authorities will often, at the time of exchanging information, be undertaking concurrent investigations of entities the subject of that information, its unauthorised disclosure may adversely affect such investigations by revealing their existence, resulting in the destruction of evidence or the transfer of assets by entities the subject of such investigations. If there were insufficient trust between the ATO and other revenue authorities, then it was likely such other authorities, upon receiving requests for exchanges of information from the ATO, would not comply with such requests until they had completed their own investigations, which would “seriously hinder” the ATO’s ability to conduct its investigations.
With respect to the relationship between the ATO and HMRC in particular, Mr Shannon said that he considered that if the ATO were to disclose information obtained under the Convention on a basis beyond the terms upon which it had been exchanged, it would reduce the likelihood of future exchanges of information under the Convention and would compromise their future cooperative efforts. Under cross-examination, Mr Shannon said that he understood that also to be “a globally-accepted view”. That would “undermine both the relationship between the contracting states, the ATO and the HMRC, and the capacities of the agencies to perform their respective function/s in relation to both domestic and international taxation”.
Under cross-examination, it was put to Mr Shannon in that regard that HMRC was obliged to comply with requests for information under the terms of the Convention. Mr Shannon explained that there is also a range of information that may not be covered by the terms of the Convention “which adds to the relationship” which might be affected, the relationship between the ATO and HMRC extending beyond the formal one governed by the Convention to the individual relationships between officers of those revenue authorities. He explained that the “spontaneous” exchange of information, in terms of the exchange preceding specific requests or extending beyond them, would be affected. In response to a question posed by the Tribunal about such “spontaneous” exchanges, Mr Shannon explained that such exchanges occur between the ATO and all of its treaty partners, and it remains the case with respect to such spontaneous exchanges that it is understood that such information is not to be disclosed by the receiving revenue authority without the consent of the authority providing the information.
With respect to the decisions under review, Mr Shannon stated in his affidavit that the documents the subject of the FOI requests said to be exempt documents or to contain exempt matter under ss 33(a)(iii), 33(b) or under both provisions contain information which was exchanged between the ATO and HMRC under the Convention, “or administrative material which, if disclosed, would reveal the nature of the substantive information exchanged”. Mr Shannon said that ATO records concerning how the relevant material was obtained demonstrated that the privacy and security protocols to which he had referred had been applied to the documents in question.
In conclusion, Mr Shannon said that he considered that the release of the documents in question would “divulge information communicated in confidence by the government of the UK and/or its authority, the HMRC, to the ATO on behalf of the Commonwealth of Australia” and that it would cause damage of the kind to which he had referred to relations between Australia and the UK in respect of taxation administration. Furthermore, he said that, to the extent that the documents comprise requests for information made by the ATO, disclosure of such documents “would, of itself, reveal the nature and subject matter of the information provided by the HMRC”.
Mr Karathanos is a Director, Risk Strategy and Intelligence, Serious Non Compliance at the ATO. Amongst other things, he manages the ATO’s “AUSTRAC Liaison Team” which, as the name suggests, has a role in managing the relationship between the ATO and AUSTRAC. The team assists the ATO by arranging requests for, and exchanges of, information and intelligence between the ATO and AUSTRAC. The ATO uses information and intelligence provided by AUSTRAC to assist it in its compliance work, such as audits and investigations, and in its “intelligence research”, such as analysis of the risk of non-compliance with taxation obligations associated with particular segments of taxpayers. Mr Karathanos referred to s 125 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), which provides that the Commissioner of Taxation and any taxation officer is entitled to access to “AUSTRAC information” (as defined in that Act) for any purpose relating to the facilitation of the administration or enforcement of a taxation law.
Mr Karathanos also referred to a Memorandum of Understanding between the Commissioner and the Chief Executive Officer of AUSTRAC (the “MOU”), which governs cooperation between the ATO and AUSTRAC and the ATO’s access to and use of AUSTRAC information and documents containing AUSTRAC information. He referred to various clauses of the MOU that impose obligations on the ATO with respect to the use and disclosure of information provided by AUSTRAC, particularly clauses 33, 34 and 38-46 (inclusive).
Mr Karathanos noted that AUSTRAC, unlike the ATO, is a member of the Egmont Group of Financial Intelligence Units (FIUs), which serves to enable international cooperation in countering money laundering and the financing of terrorist activities. As a member of that group, AUSTRAC is therefore able to request information relating to such activities (including information relating to overseas transactions) from other members, in accordance with the “Principles for Information Exchange Between Financial Intelligence Units for Money Laundering and Terrorism Financing Cases The Hague, 13 June 2001”. Given that the ATO is not a member of the Egmont Group, it can only request and obtain information from overseas FIUs through AUSTRAC, in accordance with clauses 47-49 (inclusive) of the MOU.
Mr Karathanos explained that the ATO is required to maintain the confidentiality of the information that AUSTRAC obtains from an overseas FIU – he referred in that regard to clause 49 of the MOU. He said that disclosure by the ATO of information provided to AUSTRAC by Egmont Group members or the source of such information “would compromise the program of information exchange developed to support international efforts to combat money laundering and terrorism financing” and that:
“[t]here is a clear understanding and expectation in accordance with the terms of the MOU that information provided by an overseas FIU through AUSTRAC to the ATO will be treated as confidential and not be further disclosed without the consent of the overseas FIU”.
Such disclosure would damage the ATO’s relationship with AUSTRAC and also would damage AUSTRAC’s relationship with other Egmont Group members. Damage to these relationships would affect the ATO’s ability to investigate taxpayers’ offshore transactions, money laundering and terrorism financing, given the need for timely information and evidence concerning such activities – Mr Karathanos said that there is a risk that Egmont Group members may be reluctant to provide information in the future, including information provided on a voluntary basis, if AUSTRAC could not ensure its confidentiality. Furthermore, he said that if AUSTRAC were to lose confidence in the ATO’s ability to keep information confidential, “this would complicate the exchange of information process between the ATO and AUSTRAC”.
Under cross-examination, Mr Karathanos was asked how the relationship between ATO and AUSTRAC might be damaged if the ATO were to disclose information to the Applicants which had been provided by AUSTRAC, given that AUSTRAC was under an obligation to provide information to the ATO. Mr Karathanos responded that, depending on the manner in which the information had been obtained, there were restrictions on divulging that information. He accepted that his evidence about the likely damage to the relationship between AUSTRAC and equivalent overseas agencies was general in nature, in the sense that it did not pertain particularly to information contained in the relevant documents in issue. In response to a question posed by the Tribunal, Mr Karathanos said that it was part of the agreement between AUSTRAC and equivalent agencies overseas and other members of the Egmont Group that any information conveyed by such agencies will be confidential, even if there was not an express statement made to that effect on a particular occasion.
Counsel for the Commissioner noted that Mr Karathanos’ evidence pertains to the documents the subject of AUSTRAC’s claim for exemption (which, as we have noted, concerns four documents). AUSTRAC relied upon the affidavit of Mr Craig Robertson in support of its claims. That affidavit and the documents annexed to that affidavit were also made the subject of an order under s 35 of the AAT Act prohibiting their publication and disclosure other than to AUSTRAC. Mr Robertson also gave oral evidence before the Tribunal, in a confidential session only representatives of AUSTRAC were permitted to attend. The Tribunal has taken Mr Robertson’s affidavit and oral evidence into account in making its decision.
THE ISSUE
The issue is whether in respect of each piece of information which remains the subject of a claim for exemption in Annexure “A”, the Commissioner has discharged the onus of establishing that all or any of the information is exempt under the FOI Act.
LEGAL PRINCIPLES
Article 27 of the Double Taxation Convention
The Applicants submit that Article 27 of the Convention does not contemplate a total prohibition on the release of information obtained from the United Kingdom because it allows for the possibility of release of some information if release is allowed by domestic law of a state party. In this particular case, in relation to documents obtained from the United Kingdom, the Applicants submit that when considering exemption of the information and particularly whether it might damage the international relations of the Commonwealth, the Tribunal must be guided by the terms of Article 27 which expressly contemplates the disclosure of such information. The Applicants point out that the Convention is given the force of legislation in Australia by s 5 of the International Tax Agreements Act 1953(Cth).
Article 27(1) is concerned with the international exchange of information and provides that:
… any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of or the enforcement or prosecution of appeals in relation to taxes to which the Convention applies. Such person or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions[emphasis added].
The Applicants contend that because Article 27 refers to information being kept secret in the same manner as information kept secret within the Contracting State, the Convention proceeds on the basis that some documents may be released by contacting States pursuant to legislation such as the FOI Act and through domestic court and tribunal proceedings. It is said that therefore the Convention envisages that local state law will permit the release of information, and therefore the release of such information is not prohibited by the Convention.
In this case, however, the Commissioner relies on s 33(b) of the FOI Act which is designed to prevent disclosure of any information or matter communicated in confidence by or on behalf of a foreign government. This is the relevant test in respect of information obtained from the United Kingdom in the present case and if the requirements of that provision are satisfied as prescribed under FOI Act, the documents will be exempt. If the information is exempt under s 33(b) there is no need to consider whether it could reasonably be expected to damage the security, defence or international relations of the Commonwealth under s 33(a).
In our view the submission by the Applicants based on Article 27 does not advance the Applicants’ case and we do not accept it. It is based on a vague inference which in our view is not open. The task of the Tribunal is to apply the FOI Act according to its terms. Section 33(b) is cast in broad terms and prohibits any disclosing of any information or any matter communicated in confidence by or on behalf of a foreign government, to the Commonwealth or to an authority of the Commonwealth. The task of this Tribunal under that subsection is simply to determine whether the information or matter in question was so communicated to the Commonwealth or an authority or agent of the Commonwealth within the meaning of that section (see Secretary, Department of Prime Minister and Cabinet v Mohamed Haneef [2010] FCA 928 at [11]-[13] per Dowsett J).
Section 37 of FOI Act - “Reasonably Expected”
Section 37 of the FOI Act refers to disclosure of a document where disclosure “would or could reasonably be expected” to carry the consequences set out in the section. The phrase “would or could reasonably be expected” means that there must be at least a real, significant or material possibility of prejudice and a mere “suspicion” or “remote chance” would not satisfy the test. The test in s 37 calls for an inference based on reasonable grounds that the information in question could, in whole or in part, prejudice the conduct of an investigation of a breach of a law relating to taxation, or disclose lawful methods of proceeding for enforcement or investigations in relation to evasions of the law. The test laid down will be satisfied if there is either a likelihood of this consequence or a possibility of the consequence based on reasonable grounds.
Section 355-25 of Schedule 1 to the TAA - Protected Information “disclosed or obtained”
The Applicants submit that information will only be “protected information” within s 355- 25 of Sch 1 to the TAA if it can be shown that the information was “disclosed or obtained” by a taxation officer. The Applicants say these words exclude information generated by or communicated within the ATO. Such information may include, for example, information about proposed courses of action in respect of third parties or ATO opinions and evaluations and strategies. Information which is internal to the ATO, the Applicants say, cannot correctly be described as having been disclosed or obtained by a taxation officer.
This submission in our view unduly limits the effect of the broad terms of the provision. Section 355-30(1) refers to “information” that “was obtained for the purposes of a law that was a taxation law”.
In our view internally generated discussions, proposals, information and communications between officers of the ATO can properly be described as “information obtained” by a party as a taxation officer. For example, if a taxation officer asks another officer for a report, that report when made can be characterised as information obtained by a taxation officer. The receipt of the request itself is also “information” received by a taxation officer. There is no basis to read down the words of the provision as submitted by the Applicants.
The term “information” is relevantly defined in the Macquarie Dictionary (5th edition) to mean “knowledge communicated or received concerning some fact or circumstance”. The term appropriately covers such knowledge whether conveyed in written documents, electronic recordings, transcripts or any form in which information can be received, including information obtained directly from a tax payer or generated by the ATO (see, for example, the Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Tax Payer Information) Bill 2010 (Cth) para 2.21). In our view, information or proposals within the ATO as to future action or strategy communicated by one officer within the ATO to another is information “obtained” by the recipient for the purpose of a taxation law.
One consequence of the Applicants’ submission is that if an ATO officer passes on to another officer within the office information obtained from outside the office, that internal communication would not be exempt information. This is clearly an absurd consequence because it could seriously hinder investigations and operations and the efficient operation of the ATO.
We do not accept the submission that protected information is limited only to information that was obtained from or generated by sources external to the ATO. Nor do we accept the distinction sought to be made by the Applicant’s between the circumstances of the Commissioner, personally, and other taxation officers within the ATO.
Section 355-45 of Schedule 1 to the TAA - Publicly Available Information
Under s 355-45 of Sch 1 to the TAA information which is already available to the public is not exempt.
The Applicants submit that in his reasons for decision Perram J in Deputy Commissioner of Taxation v Chemical Trustee Limited (No. 8) [2013] FCA 494 referred to some of the names of entities and to other information sought by the Applicants and this information is therefore in the public domain and consequently not exempt.
We accept as a general proposition that published reasons for judgment of courts and tribunals can be said to be publicly available.
We have read the reasons of Perram J and in particular the information disclosed in the judgment and we consider that the mere mention of the names of some companies by way of background in the particular context of the reasons for judgment of His Honour, does not mean that the information now sought by the Applicants is in the public domain. The context in which the identities of companies are stated is critical in determining whether the information is already publicly available. The references in the reasons for judgment are part of a narrative background in relation to the activities of the corporations considered in that case. On the other hand, the documents in respect of which the information is presently sought by the Applicants convey different information and relate only to some of those companies in relation to a different subject matter and context. Accordingly, we are not persuaded that the information sought is publicly available.
In our view the statements in the reasons for decision of His Honour fall far short of conveying the same or similar information to that which is conveyed in the documents subject to the FOI requests.
Section 355-50 of Schedule 1 to the TAA - Understanding Tax Obligations
There is an exception under s 355-50 of Sch 1 to the TAA in respect of a disclosure made to an entity for the purpose of enabling the entity to understand or comply with its obligations under a taxation law.
The Applicants submit, in the present case, that this provision entitles it to obtain any background information which it considers appropriate or necessary for it to understand any case being made against it by the ATO, including information relating to third party proceedings. The proposition is that being able to understand or comply with obligations under a tax law involves access to and an understanding of the methodology in which the taxation office is investigating and preparing its case in relation to circumstances of a particular taxpayer. We do not accept the broad proposition that this exception operates to entitle an entity to obtain disclosure of all determinations, communications, strategies, policies and evidence within the ATO relating to the conduct of or preparation for action in relation to a taxpayer. The statutory exception is much narrower. It is directed to information for “the purpose of enabling” the taxpayer to understand its obligations. No such purpose is shown in this case. The exception relates to information which is necessary or appropriate to understand the steps that must be undertaken by the company in its circumstances to comply with a taxation law. This is quite a different entitlement to the broad one asserted by the Applicants which seeks access to the internal actions and deliberations of the ATO.
The matters for consideration by the Tribunal in relation to this exception do not extend to providing a general entitlement to obtain internally generated material by way of general “background”. For these reasons we do not accept this submission as to the unjustifiably broad interpretation sought to be placed on item 6 in s 355 of Sch 1.
Section 38 of the FOI Act
The Applicants submit that s 38 does not apply if the information relates both to an Applicant and a third party entity or to a group of entities. We do not accept this submission for the reasons given by the Tribunal in JWHL and Commissioner of Taxation [2012] AATA 337 at [72]-[73]. In our view the express exceptions of specified entities in s 355-25(2) of Sch 1 to the TAA negates this interpretation contended for by the Applicants.
REASONING ON DOCUMENTS IN ANNEXURE “A”
In many cases, redactions have been made by the Commissioner in circumstances where it is claimed that it would not have been practical to simply delete a name or identification of an entity or person because the surrounding material would readily enable identification of the entity to be made. In such cases we have taken this into account in considering whether the extent of the redaction was appropriate, necessary or reasonable to prevent indirect disclosure of the identity of the entity by way of inference from the context.
In making the determinations in respect of particular documents which we discuss below, we have had regard to the oral and affidavit evidence of the witnesses called by the Commissioner and in particular Mr Shannon, Ms Jay, Mr Kirk and Mr Karathanos of the ATO and also that of Mr Robertson, giving confidential evidence on behalf of AUSTRAC. As we have indicated, some additional material was presented to us by Ms Dann who was the original decision-maker. As we have noted, one of the affidavits of Ms Jay was given on a confidential basis pursuant to s 35 of the AAT Act.
As we have stated, it has been agreed between the parties that the Tribunal should make rulings in respect of the documents which are set out in exhibit J, and which is Annexure “A” to these reasons for decision. The documents are set out in the format of the claims for exemptions made under each of ss 33, 37 and 38 respectively.
Having regard to our rulings in relation to these documents, the arrangement is that the Commissioner will conduct a further review of his position and determine what further documents, if any, in addition to those in Annexure “A” should be released to the Applicants.
The numbering of the documents addressed is that shown in Annexure “A”.
We set out below our findings in relation to the outstanding documents in dispute as follows:
Section 33 Claims
· Document 4
This is a Submission to issue a notice under s 264(1)(a) of the ITA Act 1936 and is a communication within the ATO. The s 33(b) claim is a partial claim for material in one paragraph on the ground that it would divulge matter disclosed in confidence by an authority of a foreign government. We have considered the paragraph in the light of the evidence of Mr Kirk, Ms Jay and Mr Shannon and have had regard to the text and form of the redacted material. We conclude that the redacted information relates to the obtaining of information from overseas sources, and we consider that disclosure of that information will divulge information or matter communicated in confidence by or on behalf of a foreign government to the government of the Commonwealth or an authority or agency of the Commonwealth, namely the ATO. Accordingly we consider the material redacted under this claim in this document is exempt.
· Document 5
This document sets out reasons for exercising the Commissioner’s powers of access under s 263 of the ITAA 1936. The s 33 claim is in respect of one paragraph only and that paragraph is the same as that in document 4. Accordingly we accept the claim for exemption.
· Document 22
This is a document which constitutes the exchange of information under the Convention by an overseas authority pursuant to the terms of that Convention. This disclosure is made expressly under the provisions of the Convention. We therefore consider that this document is exempt in its entirety.
· Document 23
This document is entitled “Company Residence Incorporation Rule”. It is evident from the reading of the contents that the information is obtained from a foreign government agency and that it sets out internal procedures, understandings, methods and guidelines of that agency. There is an express notice identifying the document as having been obtained under the Convention. Accordingly we uphold the exemption of this document in its entirety.
· Document 24
This document also concerns information relating to company residence and it is the subject of a Notice specifying that it is supplied under a tax treaty. Moreover, having regard to its contents which further describes matters concerning company residence, we note that it describes the approach to the law taken by that entity which is an overseas government agency. The claim for exemption is therefore upheld in its entirety.
· Document 25
This document is also concerned with residency requirements. The Notice accompanying the document indicates that it was obtained under a tax treaty. We have examined the contents which show that it deals with internal issues and questions concerning company residence within that overseas agency and we determine that it is therefore exempt under s 33(b).
· Document 26
This document contains further discussion of the approaches of the same internal overseas agency and that it is subject to a note that the information is furnished under the provisions of the Convention. Having regard to the evidence of the Commissioner referred to above and the contents of the document and the terms under which it is provided we consider this document is exempt.
· Document 27
This is an ATO document referring to it being part of an exchange of information under Article 27 of the Convention. It sets out information which is the subject of the exchange. It expressly refers to its use being restricted as required by Article 27 of the Convention.
In light of the evidence, and having regard to its contents and basis on which it was given, we are satisfied that it is exempt.
· Document 28
This is company information in a UK agency concerning Bywater. We note that this document has now been released and is deleted from exhibit J
· Document 29
This three page document is on its face an exchange of information with a foreign agency concerning enquiries made. In view of the above evidence, it is exchanged information with a foreign government agency that is stated to be subject to the terms of the Convention. It is exempt.
· Document 30
This is an Appendix to a document reporting accounting details of a number of commercial entities and is stated on its face to be furnished under a treaty with attendant conditions as to disclosure. We consider this document is exempt.
· Document 31
This three page letter having regard to its title, its contents and the stamp on it, is an exchange of information and comes within s 33(b). It is therefore exempt.
· Document 32
On its face this two page document is Attachment “A” to document 31. It contains a series of references to companies and incorporation dates and has the Convention stamp. It is also the subject of an ATO notice that states that it is received under a tax treaty.
This document is exempt.
· Document 33
This is Attachment “B” to document 31. It bears the Convention stamp and the ATO notice that it is furnished under a taxation treaty which governs its terms of disclosure. This document is also exempt.
· Documents 88, 89, 120, 121, 122, 123, 225, 226 and 307
All these documents come within the exemption in s 33(b). On the evidence, their form and content, and for the reasons given above, they divulge matter communicated by or on behalf of a foreign government agency to the Commonwealth or an agency of the Commonwealth. In many cases they are simply duplicates of documents and reasons which we have found to be exempt or attachments to and part of exempt documents.
We consider these documents are exempt.
· Documents 223 and 414
These documents have been deleted from exhibit J.
Conclusions on Section 33
For the above reasons we consider that all the information in Annexure A which is the subject of the s 33(b) claims is exempt from disclosure. In view of this conclusion it is not necessary for us to take into account the claim or claims under the provisions of s 33(a) of the Act.
Section 37 Claims
The claims under s 37 for exemption concern only one document - namely document 41 which is entitled “Operation Rubix Project Outline”. It is dated June 2010. In addition to the s 37 claims, there are also claims under s 38 which will be considered below. The bulk of the redacted material however concerns s 37.
The document is 38 pages long and contains background information relating to Operation Rubix. The majority of the document is not the subject of claims for exemption.
The evidence relating to this claim is set out in detail in the oral testimony and three affidavits of Ms Jay who, as we have stated, is employed in the SNC. The particular evidence which we consider relevant is contained in paragraphs [25]-[28] inclusive of her affidavit of 30 January 2013, that of 13 May 2013, together with her confidential affidavit of 13 May 2013 in paragraphs [5]-[19]. As previously noted, Ms Jay was cross-examined on her two non-confidential affidavits, but we do not consider that the force of her evidence was diminished in any significant way as a consequence of the cross-examination.
We have read the redacted parts of the document in relation to both the s 37 and s 38 claims. We are satisfied that disclosure of the redacted information in respect of which the s 37 claims are made could reasonably be expected to prejudice the conduct of investigations of possible breaches of the law or a failure to comply with a taxation law, and that it could reasonably be expected to prejudice the proper administration of the law in this instance. The information which is the subject of the s 37 redactions covers the key tasks and deliverables proposed. The major redaction under s 37 amounts to less than two and a half pages of the 38 page document. The remaining material indicates there has been a careful process of selection, consideration and reconsideration by the Commissioner in respect of this document. We have had the advantage of considering the previous redactions in relation to s 37, and we note that the redacted material in respect of the s 37 claims have been very substantially reduced.
We also note that a substantial number of other documents relating to Operation Rubix have been released to the Applicant by way of background information.
Having regard to the text and substance of the redacted material, our conclusion is that the redacted material in document 41 which is the subject of the s 37 claim is exempt under that section.
We now turn to consider the exemptions claimed in respect of s 38.
Section 38 Claims
We have considered the unredacted white and the pink redacted versions of the information contained in the documents in Annexure A concerning s 38.
In considering these documents we have taken into account the contents of the documents and the evidence referred to earlier in these reasons.
· Document 1
This is a case-profile relating to Bywater. One word is redacted in the entire document. It identifies a third party. We are satisfied that disclosure of this is prohibited under s 355-25 of Sch 1 to the TAA amounting to a disclosure of protected information concerning identity.
· Document 4
This is a Submission to issue a notice under s 264 of the Income Tax Assessment Act 1936 (the ‘ITAA 1936’). The redactions are in respect of third party entities and the redacted material identifies those entities.
The Applicant (Bywater) submits that notwithstanding the prohibition on disclosure, it is entitled to the information as an exception because access to the information is required for the purpose of enabling it to understand or comply with its obligations under a taxation law. The submission is that the Applicant needs to understand the case made against it and the way that case is prepared. For reasons given earlier we do not accept the submission that the information redacted is necessary or appropriate for the purpose of enabling Bywater to understand or comply with its taxation obligations.
The Applicant contends that it is entitled to know the internal operations, communications and records of the department in order to understand how the ATO is approaching and preparing the case against it. We do not consider that redacted information is necessary for the purpose of understanding or complying with its obligations under a taxation law. The construction sought to be placed on this exception in our view is far too broad. The Applicant is not entitled to claim access to information which it may consider could be useful by way of background to understand the case being made against it.
We consider that the redacted material in document 4 is exempt.
· Document 5
This document is entitled “Reasons for Section 263 Announced Access” and the redacted parts are identical to those in document 4 above. For the same reasons we consider this information is exempt.
· Document 6
This is a Submission to Issue a Notice under s 264 of the ITAA 1936. There are extensive redactions. We are satisfied that all of the redactions are exempt under s 38.
· Document 8
This is a Submission to Issue a Notice pursuant to s 264 of the ITAA 1936. It is a 16 page document. There are a number of substantial redactions of identities and the affairs of those identified entities.
In relation to this information, the Applicant claims that some but not all of it is in the public domain as a consequence of the publication of the reasons for judgment of Perram J in Deputy Commissioner of Taxation v Chemical Trustee Limited considered earlier in these reasons.
For the reasons set out earlier, we do not consider that mere reference in the reasons for judgment to the names of a number of entities has the consequence that the identity of those entities are in the public domain for all purposes. The information conveyed in His Honour’s reasons for judgment and the context in which the names of some of the entities are mentioned are quite different in character and context from the information in document 8. For information to be in the public domain it is not sufficient in the present circumstances for there simply to be a mention of the name of an entity in a public document. In this case the “information” said to be contained in the judgment is not relevantly similar to that in this document.
We consider the information in document 8 is exempt.
· Document 19
This is a document which sets out a list of United Kingdom companies which held shares on the ASX and repatriated money back to the United Kingdom. It is in a table which has been redacted to exclude the names of 41 companies.
The Applicant contends that some of these entities must be identical with some of the names mentioned in the published reasons for judgement of Perram J and relies on the same argument referred to above as an exception to the protection on the basis that the names are in the public domain. The contents of this document illustrate the point made in relation to document 8, namely that the context, information and substance of material communicated in naming the companies in document 19 is quite different from the mere mention of the names of some of the companies by way of general background in the reasons for judgement of Perram J.
We consider the redacted information in document 19 is exempt.
· Documents 22, 27, 29, 30, 31, 32 and 33
These documents are all exempt in their entirety under s 33(b) for the reasons and on the evidence set out above.
· Document 20
This is an Audit Case Plan concerning the Applicant (Bywater). We are satisfied that all these redactions are in respect of the protected information relevant to an entity and the affairs of the entity and are reasonably capable of being used to identify the entity. Although the redactions are lengthy we do not consider they can practically be reduced further and remain consistent with the need to protect the identity of the entity whose affairs are referred to. The redacted information is exempt.
· Document 34
This document is an Executive Summary Giving an Overview of the Strategic Direction of Operation Rubix. Redactions in this document concern entities other than Bywater and the affairs of those entities come within the class of protected information and the redacted information is therefore exempt.
· Document 35
The claim over this document is in respect of information gathered by the ATO concerning a range of entities other than Bywater. We are satisfied that this comes within the exemption under s 355-25 of Sch 1 to the TAA as identifying entities other than Bywater. We do not consider that it is practicable to remove any of the current redactions without disclosure of prohibited information.
· Document 38
This is an Executive Summary of Operation Rubix dated 18 June 2010. The redacted information relates to the identity of foreign resident companies other than Bywater and comes within the s 38 exemption.
· Document 39
This document is headed “Contents” and lists a series of annexures to affidavits. The redacted information suppresses information relating to a number of entities other than the Applicant which are identified in this list. The redacted material in this document is exempt.
· Document 41
This is the Operation Rubix Outline considered above in relation to the s 37 claim.
We have read the redacted and un-redacted parts of the document which are subject to the s 38 claim and in light of the evidence and the content of the redacted material, we consider that the information comes within s 38.
· Document 43
This is an email which relates to the affairs of third parties. Having regard to its contents and the evidence, we are satisfied that it is exempt information under s 38.
· Document 45
This is a record of shareholding in relation to a third party and the contents in our view are exempt under s 38.
· Documents 46, 47, 50-52, 83 and 95
We are satisfied that these document all refer to information and transactions involving the Applicant (Bywater) and a third party and come within the provisions of s 38.
· Documents 53, 54, 55, 56, 58, 60, 66, 82 and 84
These are internal documents of the ATO or correspondence to or from the ATO. We have had regard to their contents and in the light of the evidence we are satisfied that the redacted parts of these documents are protected information. For reasons given earlier, we consider that s 38 applies to documents generated or communicated within the ATO which comes within s 38.
· Document 61
The redactions in these pages relate to the identity of third parties and are within s 38.
· Documents 70, 71 and 74
This information relates to the affairs of third parties and identifies the third parties. The information is exempt under s 38.
· Document 80
The redactions relate to the identity of third parties and are within s 38.
· Documents 88 and 89
The information in the redactions relates to third parties and is exempt within s 38. There are also redactions in relation to this document under s 33(discussed above).
· Documents 107 and 190
These redactions relate to third parties and are within s 38.
· Document 237
The redacted part is protected by s 38. The document is a notice of intention to issue a notice under s 255 of the ITAA 1936.
· Documents 245-249
The redacted information concerns the identity of a third party and is exempt under s 38.
· Document 338
This is a statement by a third party and is exempt under s 38 as it goes to the identity of that party.
· Document 391 and 397
The redactions in these documents relate to third party entities and the information is within s 38.
· Documents 422 and 423
These are a tax return and financial report relating to a third party and are exempt under s 38.
CONCLUSION
The Tribunal sets aside the previous decisions which are the subject of these review applications and substitutes its decisions on the claims for exemption of the documents set out in Annexure A to these reasons. With respect to the remainder of the documents in issue, the Tribunal stands the matter over to a date to be fixed. The Tribunal grants liberty for either party to apply to the Tribunal on two days’ notice in respect of any issue or question which may arise in relation to the application of the rulings made in these reasons to other information in respect of which claims for exemption have been made by the Commissioner or AUSTRAC, which are the subject of applications of review, and which have not been decided by the Tribunal in these reasons.
I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. B J M Tamberlin QC, Deputy President,
S E Frost, Deputy President, and
F J Alpins, Deputy President....................[sgd].....................................................
Associate
Dated 30 August 2013
Dates of hearing 20, 22, 24 and 28 May 2013 Counsel for the Applicant Mr J Hyde Page Counsel for the Respondent Ms A Mitchelmore Solicitors for the Respondent Minter Ellison Solicitors for the Joined Party Australian Government Solicitor
Category Subcategory Doc No. Vol No. Doc ID Duplicated content Doc No. Duplicated content
Doc IDA. BACKGROUND INFORMATION Requests to obtain information from third parties in relation to the applicants Submission to issue a notice under s 264(1)(a) and (b) ITAA 1936 4 s33 MYM55702.01.001.0082 143 MYM55699.01.001.0485 273 MYM55703.01.001.0186 380 MYM55698.01.001.0128 384 MYM55698.01.001.0174 Request to make an announced access visit under s 263 ITAA 1939 in respect of the applicants 5 s33 MYM55702.01.001.0091 144 MYM55699.01.001.0494 274 MYM55703.01.001.0195 341 MYM55700.01.001.0184 383 MYM55698.01.001.0165 B. INFORMATION EXCHANGED BETWEEN ATO AND OTHER AGENCIES Correspondence / information exchanged between ATO and AUSTRAC 88 s 33 MYM55702.02.007.0001 89 s 33 MYM55702.02.007.0006 Correspondence / information exchanged between ATO and HMRC 22 s 33 MYM55702.01.001.0343 125 MYM55699.01.001.0409 303 MYM55703.01.001.0472 413 MYM55698.01.001.0465 23 s 33 MYM55702.01.001.0346
(attachment to document 22)126 MYM55699.01.001.0412 304 MYM55703.01.001.0475 414 MYM55698.01.001.0468 24 s 33 MYM55702.01.001.0350
(attachment to document 22)127 MYM55699.01.001.0416 305 MYM55703.01.001.0479 415 MYM55698.01.001.0472 25 s 33 MYM55702.01.001.0352
(attachment to document 22)128 MYM55699.01.001.0418 306 MYM55703.01.001.0481 416 MYM55698.01.001.0474 26 s 33 MYM55702.01.001.0355
(attachment to document 22)129 MYM55699.01.001.0421 302 MYM55703.01.001.0469 417 MYM55698.01.001.0477 27 s 33 MYM55702.01.001.0358 124 MYM55699.01.001.0404 301 MYM55703.01.001.0464 412 MYM55698.01.001.0460 28s 33MYM55702.01.001.036229 s 33 MYM55702.01.001.0365 118 MYM55699.01.001.0389 296 MYM55703.01.001.0449 406 MYM55698.01.001.0442 30 s 33 MYM55702.01.001.0368
(attachment to document 29)119 MYM55699.01.001.0392 297 MYM55703.01.001.0452 407 MYM55698.01.001.0445 31 s 33 MYM55702.01.001.0380 115 MYM55699.01.001.0383 221 MYM55699.02.006.0002 293 MYM55703.01.001.0443 403 MYM55698.01.001.0436 32 s 33 MYM55702.01.001.0382
(attachment to document 31)116 MYM55699.01.001.0385 294 MYM55703.01.001.0445 404 MYM55698.01.001.0438 33 s 33 MYM55702.01.001.0384
(attachment to document 31)117 MYM55699.01.001.0387 295 MYM55703.01.001.0447 405 MYM55698.01.001.0440 120 s 33 MYM55699.01.001.0393
(attachment to document 29)121 s 33 MYM55699.01.001.0396
(attachment to document 29)298 MYM55703.01.001.0456 409 MYM55698.01.001.0453 122 s 33 MYM55699.01.001.0400
(attachment to document 29)299 MYM55703.01.001.0460 123 s 33 MYM55699.01.001.0402
(attachment to document 29)300 MYM55703.01.001.0462 410 MYM55698.01.001.0455 223s 33MYM55699.02.006.0004411s 33MYM55698.01.001.0456Correspondence / information exchanged between ATO and international organisation 225 s 33 MYM55699.02.007.0003 226 s 33 MYM55699.02.007.0004 307 s 33 MYM55703.01.001.0483 Category Subcategory Doc No. Vol No. Doc ID Duplicated content Doc No. Duplicated content
Doc IDA. BACKGROUND INFORMATION Background information relating to the applicants and/or
Operation RubixOperation Rubix Project Outline 41 2 MYM55702.02.001.0047 Category Subcategory Doc No. Vol No. Doc ID Duplicated content Doc No. Duplicated content Doc ID A. BACKGROUND INFORMATION Background information relating to the applicants and/or Operation Rubix Case profile for the applicant 1 1 MYM55702.01.001.0002 49 MYM55702.02.004.0009 Audit case plan for the applicant 20 1 MYM55702.01.001.0325 48 MYM55702.02.004.0001 Operation Rubix Project Outline 41 2 MYM55702.02.001.0047 42 MYM55702.02.001.0048 85 MYM55702.02.006.0002 86 MYM55702.02.006.0003 87 MYM55702.02.006.0004 Executive summary of Operation Rubix 38 2 MYM55702.02.001.0038 21 MYM55702.01.001.0339 Deputy Commissioner Summary of Operation Rubix 34 1 MYM55702.02.001.0001 Internal ATO documents or correspondence in relation to the applicants 19 1 MYM55702.01.001.0323 53 4 MYM55702.02.005.0007 54 4 MYM55702.02.005.0008 55 4 MYM55702.02.005.0009 56 4 MYM55702.02.005.0016 58 5 MYM55702.02.005.0018 60 5 MYM55702.02.005.0021 59 MYM55702.02.005.0019 57 MYM55702.02.005.0017 66 5 MYM55702.02.005.0032 64 MYM55702.02.005.0029 63 MYM55702.02.005.0028 62 MYM55702.02.005.0026 82 5 MYM55702.02.005.0076 84 5 MYM55702.02.006.0001 Requests to obtain information from third parties in relation to the applicants Submissions to issue a notice under s 264(1)(a) and (b) ITAA1936 4 1 MYM55702.01.001.0082 Submissions to issue s 264 ITAA1936 notice 6 1 MYM55702.01.001.0100 8 1 MYM55702.01.001.0140 Request to make an announced access visit under s 263 ITAA1936 in respect of the applicants 5 1 MYM55702.01.001.0091 Response to s 353-10 notice from third party 35 1 MYM55702.02.001.0015 65 MYM55702.02.005.0031 69 MYM55702.02.005.0037 76 MYM55702.02.005.0045 77 MYM55702.02.005.0046 90 MYM55702.03.001.0001 91 MYM55702.03.001.0003 93 MYM55702.03.001.0008 94 MYM55702.03.001.0010 61 5 MYM55702.02.005.0023 92 MYM55702.03.001.0005 Emails relating to the above submissions / requests Documents relating to approval of ITAA submissions / requests 36 1 MYM55702.02.001.0016 43 2 MYM55702.02.001.0050 B. FINANCIAL INFORMATION Information / transactions involving one of the applicants and a third party 46 2 MYM55702.02.002.0001 47 2 MYM55702.02.003.0001 50 3 MYM55702.02.005.0002 51 3 MYM55702.02.005.0005 52 4 MYM55702.02.005.0006 83 5 MYM55702.02.005.0082 95 5 MYM55702.05.001.0001 C. PROPERTY / SHAREHOLDING INFORMATION Records of shareholding information involving the applicants 80 5 MYM55702.02.005.0050 78 MYM55702.02.005.0047 44 MYM55702.02.001.0052 Records of shareholding information involving a party related to the applicants 45 2 MYM55702.02.001.0053 Land and property title searches relating to property in which an applicant has an interest 725MYM55702.02.005.0040D. INFORMATION EXCHANGED BETWEEN ATO AND OTHER AGENCIES Correspondence / information exchanged between ATO and AUSTRAC 88 5 MYM55702.02.007.0001 89 5 / s 33 MYM55702.02.007.0006 Correspondence / information exchanged between ATO and HMRC 22 s 33 MYM55702.01.001.0343 27 s 33 MYM55702.01.001.0358 29 s 33 MYM55702.01.001.0365 30 s 33 MYM55702.01.001.0368 31 s 33 MYM55702.01.001.0380 32 s 33 MYM55702.01.001.0382 33 s 33 MYM55702.01.001.0384 E. DOCUMENTS CONCERNING THIRD PARTIES RELATED TO APPLICANTS Company / organisation extracts 21MYM55702.01.001.0011Third party documents 39 2 MYM55702.02.001.0039 Correspondence involving third parties related to applicants 70 5 MYM55702.02.005.0038 71 5 MYM55702.02.005.0039 74 5 MYM55702.02.005.0042 ADDITIONAL DOCUMENT CATEGORIES RELEVANT TO OTHER APPLICANTS (NOT BYWATER INVESTMENTS LIMITED)
Category Subcategory Doc No. Vol No. Doc ID Duplicate Doc No. Duplicate Doc ID F. FURTHER BACKGROUND INFORMATION Background information relating to the applicants and/or Operation Rubix Intention to issue s 255 ITAA1936 notice 237 11 MYM55699.02.008.0039 Statement by third party 338 14 MYM55700.01.001.0057 Correspondence between ATO and third party related to applicant 190 7 MYM55699.02.001.0122 107 6 MYM55699.01.001.0301 G. FURTHER FINANCIAL INFORMATION Information / transactions involving a third party related to the applicants (but not the applicants) 391 17 MYM55698.01.001.0412 397 17 MYM55698.01.001.0425 Assessment / lodgement history 245 11 MYM55699.02.008.0080 246 11 MYM55699.02.008.0081 247 11 MYM55699.02.008.0082 248 11 MYM55699.02.008.0083 249 11 MYM55699.02.008.0084 H. INFORMATION EXCHANGED BETWEEN ATO AND OTHER AGENCIES Correspondence / information exchanged between ATO and international organisation 226 s 33 MYM55699.02.007.0004 I. DOCUMENTS CONCERNING THIRD PARTIES RELATED TO APPLICANTS Financial reports & tax returns 422 17 MYM55698.02.002.0075 423 17 MYM55698.02.002.0076 996MYM55699.01.001.0042Property information 43517MYM55698.02.002.0088
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