Overview
If your request for a small business independent review or large market independent review is approved, a tax officer from the independent review area, who hasn’t had any previous involvement in the audit, will be assigned to review your case. They will:
- bring a fresh perspective to your case
- consider the documents setting out your position and the final audit position from the audit team
- facilitate a case conference
- make a written recommendation as to which position is the better position.
The purpose of the case conference
The case conference is an essential part of the independent review process – without it we can't complete your independent review. The case conference is a discussion that enables the reviewer to better understand your position and the audit position, based on the facts, arguments, information and evidence previously provided to the audit team.
Generally, the reviewer won’t consider new facts, material evidence or arguments, and may discontinue your review if you raise new points. They’ll consider what’s fair to both you and the audit team, and if it will delay or complicate the process. If they decide to request new information, you will have 14 days to provide it.
The case conference isn’t an opportunity to consider and discuss potential dispute resolution options, such as in-house facilitation. You can discuss these with your audit case officer.
The independent review process is not intended to limit opportunities for you to discuss settlement or potential dispute resolution options. However, if settlement negotiations begin during an independent review, we may put the review on hold pending the outcome of those discussions.
Who attends the case conference
It’s important that the people attending have a thorough knowledge of the facts and understanding of the issues, and have been directly involved in the audit.
Only you, your representative or adviser, and the ATO officers who have been directly involved in the audit should attend the case conference. Senior representatives or advisers who can’t demonstrate a significant role during the audit, and external legal counsel, aren’t usually permitted to attend.
Our service principles explain what you can expect of us, and what we expect of you, during the process.
How the case conference is conducted
There’s normally only one case conference during an independent review, and it will be tailored to your individual circumstances.
Case conferences for:
- small business independent reviews will generally be within 3 weeks of your request being allocated
- large market independent reviews will generally be within 8 weeks of your request being allocated.
You can expect to receive an agenda around one week before the case conference. The agenda will identify any issues that the reviewer would like to specifically discuss or clarify during the conference.
The case conference will normally take 1–2 hours for small business, or up to 3 hours for large market, depending on the issues in dispute.
As the conversation is intended to be informal, it may not follow the agenda order. However, you can expect that all topics identified in the agenda will be covered. There will also be an opportunity for you to raise any issues that are not listed.
The reviewer will facilitate the case conference, engaging with you and the audit team to better understand each party's position and clarify issues and areas of disagreement you have raised. This includes the relevance of any factual conclusions that had been reached previously.
The reviewer won’t provide you with any minutes, notes, observations, recommendations or preliminary conclusions from the case conference, but you are welcome to take your own notes.
After the case conference
The reviewer will consider each party's position and prepare written recommendations on each issue in the dispute, including:
- what the reviewer considers is the better view of the facts
- the application of the law to those facts.
In some circumstances, the reviewer may consult other ATO staff (who are independent to the audit team) to help them form their recommendations.
The reviewer will communicate their recommendations to you and the audit team. The audit team is expected to finalise your audit according to the recommendations.
Example: Requesting a small business independent review
Caitlin runs a café business and is subject to an audit. She receives our final audit position and doesn’t agree that her business income was incorrectly reported and that an administrative penalty should apply.
Caitlin’s audit officer advises her that she is eligible for an independent review of the audit position. She requests a review and tells us why she disagrees.
An impartial tax officer, with no previous involvement in the matter, conducts the review. He considers the documents setting out Caitlin’s position and our audit position. He schedules a case conference with Caitlin, her representatives and the audit team.
During the case conference, the reviewer discusses the issues with Caitlin and the audit team. He clarifies the issues and areas of disagreement.
Following the case conference, the reviewer considers both parties’ positions and prepares written recommendations on each issue in dispute.
He communicates the recommendations to Caitlin and the audit team, and the audit team finalises the audit according to the recommendations. Caitlin can still object if she disagrees with the outcome.
End of exampleEscalating your issue
We may escalate your issue to an appropriate officer in the Office of the Chief Tax Counsel (including the Chief Tax Counsel or Deputy Chief Tax Counsel if appropriate) for their consideration before making a final decision. This is to support consistent decision-making. You will be informed if this happens.