Attending a formal interview

Overview of a formal interview

We usually conduct interviews without using our formal powers, but we sometimes need to formalise the process – we do this by issuing a notice to attend and give evidence. When using our notice powers, we plan our activities to minimise your costs and we engage with you in a professional and timely manner.

Situations in which we issue a notice to attend a formal interview include when we:

• consider an interview is the best way to resolve a complex issue
• believe you may be involved in tax avoidance
• believe you may have information about a taxpayer who is involved in tax avoidance
• require an explanation about the nature of a transaction
• need to ask wide-ranging questions
• plan to show you documentation to assist in your recollection of events
• need to establish, clarify or check facts
• may require evidence from you on oath or affirmation
• require information about another person or entity’s tax affairs.

A formal interview will ensure that the information third parties give us won't breach their obligations under the Privacy Act.

For more information about respecting your privacy, see Your rights in the ATO charter – what you need to know

Who may attend an interview

In addition to our officers named in the notice, a number of people may attend the interview, including:

• assistants to help with the administrative aspects of the interview
• interpreters
• stenographers and note takers
• legal representatives to assist our officers.

If we engage external representatives to attend your interview:

• we will notify you of their attendance in the covering letter attached to your notice to attend
• they will be subject to the same secrecy requirements as our officers.

Our lawyers

In some cases, we may engage a lawyer to assist at a formal interview, for example, where:

• complex matters of fact are involved
• there are complex claims for legal professional privilege, the accountants’ concession or the corporate board advice concession
• you have advised us that you're to be accompanied at the interview by a lawyer
• we need to assess your credibility
• a legal challenge to the notice is likely to be raised at the interview.

Interpreters

If you have difficulty understanding and speaking English, we recommend that you contact us prior to your interview to arrange for an interpreter to be present.

We can provide an interpreter for you or you can bring your own. In either case, the interpreter must make an oath or affirmation to swear or affirm that they will make a true and honest interpretation of the questions asked and answers given.

Your representatives

Although you do not have a legal right to be accompanied by another person at a formal interview, we usually allow you to bring one or more persons of your choice to assist or advise you at the interview. Your representative may be a professional adviser, interpreter, friend, spouse or other family member.

We may decide to exclude your choice of representative from the interview in limited circumstances. For example, if your representative participated in the transactions of interest (other than as an adviser) and their attendance at your interview could prejudice our investigation. In these circumstances, they may be subject to a separate interview in relation to the transactions.

We usually advise you if we are excluding certain people from your interview at the time the notice is sent. If we advise you at the interview, we will consider adjourning it and giving you an opportunity to obtain advice or appoint alternative representation.

You may be required to continue the interview without your choice of representative being present. If so, it is an offence under tax law to refuse or fail to answer a question or produce a book, paper, record or other document to the extent that you are capable of doing so. You may be prosecuted if you refuse to continue with the interview.

What you can expect at the interview

We will explain your rights and obligations before the interview starts. These include your right to claim legal professional privilege, the accountants' concession and the corporate board advice concession.

We expect you to advise any person attending with you that they will be asked to identify themselves. We also expect that you will answer our questions and produce documents as required, based on your knowledge and understanding.

You can expect that we will:

• comply with the ATO charter
• advise you in advance if we will use lawyers in the conduct of the interview
• treat you fairly and openly, and conduct the interview in a professional manner
• ensure that our officers conducting the interview have the authority to do so
• explain the interview procedure at the beginning of the interview
• allow you to be accompanied by one or more persons of your choice in most circumstances
• offer you a copy of the transcript or recording of the interview (in some circumstances this may not be available immediately after the interview).

For more information about the way we conduct ourselves when dealing with you, see ATO charter - what you need to know.

Before starting the interview

Before starting an interview, we will explain:

• the interview procedure
• how the oath or affirmation will be given if the evidence is required to be sworn or affirmed
• that we will record the interview
• that it is important to speak slowly and clearly
• that the role of your professional adviser does not extend beyond advising you of your legal rights and obligations
• that you must personally answer all the questions, and your representative can't answer on your behalf.

If you haven't brought the notice requiring your attendance at the interview, we will allow you to examine a photocopied version of the original notice.

We may ask you to confirm that this is a copy of the original notice addressed to you before the interview can proceed.

Recording the interview

We usually electronically record formal interviews, and generally use an audio recording device to make the recording. In limited circumstances, we make a video recording of the interview. If the interview is recorded, all persons present at the interview will be asked to identify themselves for the purpose of the recording. In most cases, copies of the recording will be available to you at the conclusion of the interview. If a transcript is subsequently prepared, we will provide you with a copy.

Although your consent isn't required for a recording, at the start of the interview we will inform you that the interview will be recorded. Refusal or failure to answer a question to the extent you're capable of is an offence.

Oath or affirmation

You may be required to give us information or evidence on oath or affirmation under our notice powers.

If so, we will allow you to:

• choose a form of oath
• make an affirmation if you object to taking an oath on the grounds of having no religious belief or if swearing an oath is contrary to your religious belief.

If you don't comply with this requirement, we will generally:

• ask you to state the reason for your refusal
• advise you that it is an offence to refuse to take an oath or make an affirmation.

We may continue the interview allowing you to give unsworn evidence or discontinue the interview and consider referring the matter for prosecution. Whether or not we continue the interview will depend on the circumstances. If we decide to continue the interview, we will explain your obligation to answer questions.

For more about the offences relating to the refusal or failure to answer a question at interview, refer to:

• sections 8K and 8N of the TAA
• sections 136.1, 137.1 and 137.2 of the Criminal Code.

Challenging the notice at the interview

If you challenge the validity of the notice at the interview, unless the notice is obviously invalid, we will:

• record the challenge
• seek advice before proceeding with the interview if we believe the notice to be valid.

You may be liable to prosecution for not complying with the requirements of the notice if you fail to continue with the interview.

If the notice appears to be invalid, we may decide to end the interview at that point and issue a new notice. Alternatively, we may ask whether you're willing to continue with the interview on an informal basis.

We will request your permission to record the interview if we proceed on an informal basis and won't administer an oath or affirmation in these circumstances.

During the interview

Our interviews help us identify, clarify and resolve issues. During an interview, we will generally explain that:

• it is an offence to make a false or misleading statement (and you may be prosecuted for doing so)
• if you only have a belief about an answer to a question, rather than knowing the answer, you should say so as part of the answer
• if you do not know or remember the answer to a question, you should say so
• refusal to answer a question is an offence under section 8D(1)(a) of the TAA, and the privilege against self-incrimination isn't a defence for failing to answer.

The statutory obligation to answer questions overrides any common law right against self-incrimination.

Claiming legal professional privilege and administrative concessions

During an interview, you may be able to claim legal professional privilege, the accountants' concession or the corporate board advice concession.

If you make a claim, we may consider adjourning the interview for a brief period to consider your claim.

We provide a detailed explanation of the limits to our notice powers under Limits to our formal powers.

For more about the offence of making a false or misleading statement, refer to sections 8K and 8N of the TAA and section 136.1 of the Criminal Code.

Taking copies of documents

We can require original documents to be produced at an interview under our notice powers. In some cases, we will advise if you can provide a copy of the document instead.

We may refer to documents during the interview. If so, we will:

• show you copies of these documents and their contents
• give you copies of the documents shown or used during the interview if you request them
• only disclose those parts of the document that are relevant to the questions we ask you if it contains material relating to other taxpayers
• mark the documents produced at the interview as an exhibit and identify them for the purpose of the recording/transcript at the time they are first produced.

We may decide to make copies of your documents at the end of the interview and retain them for a reasonable period to allow them to be copied. We will usually request a signed receipt upon returning the documents to you.

During an interview, you may produce documents which haven't been listed in our notice. With your consent, we will retain those documents and make copies of them and provide you with a written receipt specifying the date and method of return. If you object, we may decide to have access to them or consider issuing a notice to you to produce them.

Adjourning the interview

If an interview has continued for an extended period of time, we will consider if it is appropriate to either:

• continue the interview with a view to finishing it on the day
• adjourn the interview until another day.

If we adjourn the interview, we will make every effort to resume the interview on the next business day. We will take your personal circumstances into account when deciding when to resume and may agree with you to resume the interview on a specific date and time. We may adjourn an interview for longer periods, depending on the circumstances.

If you were previously under oath or affirmation, you will still be under oath or affirmation when the interview resumes.

If you refuse to agree to resume the interview at a later date and time, it may be necessary to conclude the interview. We may issue a further notice requiring your attendance on another day and time, allowing for a reasonable amount of time after the adjourned interview.

Finalising the interview

Our notice may require you to produce documents. Whether we examine these documents during the interview, copy them or retain them for later examination will depend on the number of documents and the complexity of the issues under examination.

After examining your documents, we may have further questions in relation to them. We usually ask you at the time of your interview how you would prefer to answer those questions. We generally ask these questions in writing, by informal interview or by issuing another notice.

At the conclusion of the interview, we will usually:

• ask if you have any comments on what has been asked during the interview, or if you have any general comments about the interview
• confirm what follow-up action (if any) each party needs to take, and clearly set out how and when the follow-up action is expected.

In most cases, where an interview has not been electronically recorded but a written record was made, we will:

• read the record back to you at the end of the interview
• give you a copy of the record
• ask you to confirm the accuracy of the record or make any necessary corrections later – you're not required to sign it.

After the interview

You can contact us to discuss any matter arising from the interview. If you wish to clarify or correct the evidence you gave at the interview, we may require this further information to be given at another interview.

After the interview process is complete, our officer dealing with your case may contact you within a reasonable time to clarify or raise issues. If we need to access further information, we will seek to make arrangements to work with you or your adviser to obtain that information.

Reimbursement of expenses

In some cases, your expenses will be paid according to a prescribed scale if you're required to attend an interview.

If you're giving evidence in respect of your own income or assessment, or the income or assessment of a person whom you represent, your expenses won't be paid.

Refer to the scale of expenses under Schedule 2 and regulation 66 to the Taxation Administration Regulations 2017.

Not complying with a notice to attend

If you don't comply with any of the requirements contained in our notice to attend an interview when you're capable of doing so, you may be prosecuted.

Prosecution won't be considered if we decide you were incapable of complying with the requirements of the notice – for example, you may have been overseas or hospitalised at the relevant times. However, you won't avoid prosecution by taking steps to make yourself incapable of complying after you have received the notice.

If you're unable to produce documents because another party holds them under a court order, you must notify us of that fact before the interview day or you may still be required to attend the interview.