At a minimum, the final Protocol should indicate that the Commissioner will work with respondents on a case-by-case basis to agree on a more balanced, practical way of giving the ATO a reasonable level of information in such cases.

There is authority that a person asserting LPP should provide evidence or make submissions in support of their claim in the context of a response to a compulsory production power exercised by a statutory authority: National Crime Authority v S.^[2]

We recognise that the level and type of particulars about a communication needed to decide what to do with a claim of LPP can vary depending on the circumstances.

Additional wording has been added to paragraphs 11 and 37 of the final Protocol concerning compliance with the Protocol. If a taxpayer does not follow the Protocol, there is no presumption that a claim is invalid or that we will challenge it.

Taxpayers may decide to adopt particular parts of the Protocol - for example, if all the communications are with a lawyer retained for the purpose of providing legal advice and are directly related to the performance by the lawyer of their professional duty, a taxpayer may choose to provide more limited particulars that they consider will enable the ATO to understand the context of the communications. However, if taxpayers do not follow the Protocol and do not explain why they have not followed the recommended approach, we may make further enquires.

We will take a taxpayer's circumstances into account and try to limit the cost of compliance. We will seek to work with taxpayers to resolve any disputes about LPP claims in a manner consistent with our existing guidance.

Additional examples relating to the dominant purpose of a communication and a communication involving non-legal persons or legal practitioners not acting in the capacity of legal practitioners have been added to the final Protocol based on stakeholder feedback.

The ATO should consider agreeing with the taxpayers and advisors on the process of claiming LPP before the taxpayer or advisor embarks on the process (that is, agree on Step 3 before undertaking Steps 1 or 2). It is very costly for taxpayers and advisors to revisit LPP claims if the ATO perceives that there is a gap in the analysis or process.

Where there are legitimate concerns about following the Protocol, you can engage with us to explore these concerns early in the information gathering process. Any disputes will be resolved consistently with our existing guidance.

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taxpayers are not expected to waive privilege when following the Protocol

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taxpayers are encouraged to seek legal advice if there is a risk of waiver, and

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the Protocol does not intend for legal practitioners to advise their clients in a manner contrary to their professional obligations.

It is acknowledged that the Commissioner is concerned about the time it takes for privilege claim information to be provided.

The Commissioner could encourage taxpayers to be more forthcoming at an earlier point in time if the Commissioner adopted:

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as a matter of good administration, not to insist on their entitlement where there has been inadvertent waiver, and

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an approach where privilege claims are examined by staff other than the auditors responsible for the underlying formal notice.

The Protocol also notes that when determining how much time to give to comply with a notice (including a request for an extension of time to comply), we will have regard to Our approach to information gathering. In accordance with this, we encourage taxpayers to discuss their circumstances involving information requests with us as early as possible. We do not think it is necessary or appropriate to prescribe a process for all LPP claims to be examined at first instance by someone other than the team responsible for the underlying formal notice.

Issues concerning inadvertent waiver are highly dependent on the facts and circumstances, and outside the scope of the Protocol.

The ATO should provide taxpayers additional time to respond to the formal notice in situations where the Protocol is applied and the Commissioner's intention of allowing additional time should be stated in the Protocol.

Alternatively, the Protocol should allow for the response to be provided in tranches with a later date for taxpayers to provide particulars.

Alternatively, the notice should provide for a standard response time of 56 days where privilege issues are likely to arise.

Alternatively, the Commissioner should allow for a tranche delivery of responses with a standard response of:

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unclaimed documents to be delivered within 28 days

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LPP claim details to be provided within 56 days, and

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production of documents where privilege claim has been made and these have been challenged successfully by the ATO in court, 14 days after the final court decision.

Alternatively, in seeking to apply the Protocol, it may be unproductive and unreasonable to set timeframes as noted in paragraph 26 of the draft Protocol. The ATO, taxpayers and their advisors should agree mutually acceptable timeframes on a case-by-case basis.

The final Protocol recognises the existing approaches to responding to information requests, including the adoption of a staged or tranched approach where appropriate.

While Our approach to information gathering prescribes a general timeframe of 28 days to comply with a notice, it also recognises that shorter or longer periods of time may apply in some cases. We do not think it is necessary to change the general timeframe of 28 days or to prescribe in the Protocol some other period of time to comply where privilege issues arise. As with our existing practice, taxpayers will be given a reasonable period of time to seek advice on claiming LPP and to respond to a formal notice.

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it is not required by law

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it creates a conflict between compliance with the Protocol and the lawyer s' duties to the court and their client

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not all lawyers will be equipped to deal with the level of particularisation required in the Protocol, and

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it will be expensive and time consuming to provide all the particulars identified in the Protocol.

Further, the Protocol should allow communications to be categorised and reviewed in groups similar to the practice in courts, rather than on a document-by-document basis which is onerous.

We recognise that the level and type of particulars to enable us to decide what to do with an LPP claim can vary and there is no standard amount of information that must be provided. For instance, the recommended particulars may not be required to be provided on a document-by-document basis where the communications clearly only involve legal practitioners acting in their capacity as legal practitioners.

We are of the view that the final Protocol sets out the approach and relevant information that we think would allow us to quickly decide how to treat an LPP claim.

Where there are legitimate concerns about following the recommended approach in the Protocol, taxpayers can engage with us early to explore those concerns.

The Protocol is voluntary.

The title of the document may need to be redacted.

A practising lawyer may be in breach of their duties to their clients if this information is disclosed.

Further, the provision of this information does not inform the ATO whether the communication itself could be privileged given the range of possibilities.

Similarly, seeking an outline of the nature of a transaction and the particular part of an enactment in establishing the purpose of the communication reveals the content of the communication and does not assist with an assessment of whether LPP applies.

The Protocol should not seek details of the subject line (subparagraph 28(e) of the draft Protocol) until the issue is determined in CUB Australia Holding Pty Ltd v Commissioner of Taxation.^[4]

The ATO should consider what other common law jurisdictions are doing or requesting.

The title, subject line, topic or legal issue of a communication may not necessarily be immune from compulsory disclosure due to LPP. Whether or not the title or subject line needs to be redacted will depend on the circumstances. Whether or not the topic or legal issue reveals legal advice is also sensitive to the circumstances. However, we do not agree that it will always be the case that the title, subject line, topic or legal issue will need to be redacted or is otherwise immune from compulsory disclosure. Usually, the subject line of an email, for instance, would not reveal the advice.

Additional wording has been added at subparagraph 38(e) of the final Protocol to clarify that it is recommended that the title or subject line of the communication be provided except to the extent that disclosure would also disclose the content of legal advice.

Taxpayers can engage with us early to explore any concerns about providing any of the recommended particulars (including the reasons for any redaction).

Additional wording has been added (at paragraph 34, and paragraph 10 of Addendum 1) to the final Protocol to recognise that legal practitioners must comply with their ethical duties and professional obligations to maintain client privilege and confidential information. We do not expect legal practitioners to breach their ethical and professional obligations if a conflict arises between them and the recommendations outlined in the Protocol.

The title, subject, topic or legal issue relating to a communication (together with the other recommended particulars) can put us in the best position to decide what to do with an LPP claim.

Any legal developments materially impacting the Protocol will be considered and incorporated into the Protocol on an 'as necessary' basis. Accordingly, we have removed the reference to reviewing the Protocol over the next 3 years.

Through the international exchange of information process, we share information with other jurisdictions in order to administer and enforce Australia's tax laws. Such information can include approaches to information gathering.

Further, it may be practically difficult for the taxpayer to establish the identity of Person X as it could include a range of staff. In any event, this information would not assist in determining whether the relevant communication is subject to LPP.

The identity of Person X in the first scenario in Table 4 to Addendum 3 is critical to identify whether the advice was given by a legal practitioner in their capacity as a legal practitioner.

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the meaning of 'copy', particularly with digital communication noting that it is not readily identifiable whether a document is a copy

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whether persons who are copied in on emails with attachments are receiving originals or copies, and

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circumstances where an 'original' is accepted as subject to LPP but subsequent copies are not and vice versa.

It is also not clear the relevance of whether a communication is a copy for the purposes of assessing privilege.

The intent of the recommended particulars is to provide us with sufficient information to decide whether to accept, review or challenge an LPP claim made in response to a formal notice. In this regard, subparagraph 38(i) of the final Protocol and its reference to whether a document is a copy is to ascertain a description of the communication which (together with the other particulars) may practically assist us in deciding what to do with the claim, including categorising documents.

Any practical difficulties, including difficulties associated with the proper identification of originals and copies of communications, should be explained to us.

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the date the document was prepared or communication was made

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the number of pages in the document, and

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the description of the role of each person between whom the document or communication was made.

Additional wording has been included at paragraph 4 of the final Protocol to clarify that the Protocol applies to legal practitioners and non-legal practitioners generally and to all applicable LPP claims regardless of the firm or business structure within which the service or engagement is provided.

It is not required by law, nor is it practical or realistic, to anticipate this process to be followed, especially for high-volume claims.

The final Protocol should provide an alternative option. For example, taxpayers provide this level of detail in certain exceptions such as where persons included in correspondence are identified as a non-legal person or the person has a dual role.

Based on stakeholder feedback, we have included additional examples in Addendum 3 to the final Protocol relating to the dominant purpose of a communication, and a communication which relates to a service or engagement that had involvement by non-legal persons or legal practitioners not acting in the capacity of legal practitioners.

The final Protocol should explicitly acknowledge that high-quality LPP claims should not necessarily result in a waiver of LPP and that taxpayers are not expected to waive LPP when responding to an information request.

The statement in Addendum 2 to the draft Protocol (that the Commissioner will not contend waiver) should be clarified as to whether it means that the ATO will not seek access to the underlying communication or that the ATO will not use the information obtained by way of particulars provided by a taxpayer, noting the Commissioner's ability (or obligation) to use information.

The following should be added to Addendum 2 in the final Protocol:

The Commissioner, once in possession of information arising from the making of LPP claims in accordance with our recommended approach, is obliged to make use of that information or disclose to other agencies as permitted or required by law.

To reduce the risk of waiver, the final Protocol should allow for an independent assessor (within the ATO or the Australian Government Solicitor (AGS)) to consider whether disclosure of the particulars will amount to waiver. An independent process is even more important in the context of smaller businesses and less sophisticated taxpayers who may not appreciate the impact of their disclosure.

Alternatively, the final Protocol should offer certainty that the Commissioner will not allege waiver and seek the underlying communication or use the communication in making an assessment or share the information with other government agencies or regulators.

The AGS advice states that in the majority of cases, there will be a low risk of waiver where particulars of an LPP claim are provided consistently with the recommendations in the Protocol. In the unlikely event of an inadvertent waiver by the voluntary provision of the recommended particulars to us, this is likely to operate as a limited waiver and preserve the holder's ability to enforce their claim against the world at large.

The final Protocol explicitly acknowledges that we aim to support the provision of high-quality LPP claims and do not seek to create unintended waiver of LPP by taxpayers following the Protocol.

Additional wording has been added to paragraph 2 to Addendum 2 to the final Protocol to clarify our position. We will not contend that the information you provide about your LPP claims (particulars) in accordance with out recommended approach amounts, by itself, to an unintended waiver of your LPP and seek production of the underlying communication on this basis.

Paragraph 3 in Addendum 2 to the final Protocol has been amended to state that we cannot warrant that no-one else other than the Commissioner will contend that privilege has been waived by following the Protocol.

The exception (that particulars should only be provided to the extent that would not waive privilege) has been replicated in respect of other recommended particulars (see subparagraphs 38(e), 40(b), 40(c) and 40(d)(i) of the final Protocol).

Additional wording has also been added to paragraph 36 of the final Protocol to confirm that particulars provided to us will be 'protected information' and will not be disclosed except as required or permitted by law.

To assist taxpayers and advisors, paragraph 35 of the final Protocol states that taxpayers and advisors are encouraged to seek legal advice if there is a risk of waiver.

We do not think it is necessary or appropriate to prescribe a process for all LPP claims to be examined at first instance by an independent assessor. Any disputes relating to LPP (including issues of waiver) will be resolved consistently with our existing guidance.

Taxpayers can engage with us early to explore any concerns about providing a recommended particular (including where there is a risk of waiver).

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the document represents the ATO's view of privilege

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compliance with the Protocol may result in waiver

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taxpayers should seek legal advice if there is a risk of waiving privilege, and

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taxpayers only need to provide the particulars to the extent that they are comfortable that they are not waiving privilege.

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Paragraph 2 provides that the purpose of the Protocol is to recommend an approach which, in our view, will best assist us in deciding whether to accept, review or challenge an LPP claim.

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Paragraph 35 explicitly provides that to the extent that any particular would reveal the content of the advice, we do not expect it to be provided in accordance with the Protocol.

See our response to Issue 23 of this Compendium in relation to waiver, including seeking legal advice if there is a risk of waiving privilege.

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guidance on how the Commissioner considers LPP and the Protocol apply to communications regarding the application of Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) and other anti-avoidance provisions

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clarify that not all conduct that renders a person liable to a civil penalty necessarily amounts to a fraud or illegal conduct

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subparagraph 25(n) of the draft Protocol infers that the Commissioner is taking the view that LPP does not apply in audits where transfer pricing or other general anti-avoidance provisions could apply

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subparagraph 25(n) of the draft Protocol should be removed and subparagraph 25(l) of the draft Protocol should be modified to cover 'Documents or communications knowingly or intentionally made in the furtherance or participation in fraud or illegal activity', and

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subparagraph 25(m) of the draft Protocol should be removed as it could conceivably apply to all claims of LPP.

The illegal or improper purpose covers all forms of fraud and dishonesty, including fraudulent breach of trust, fraudulent conspiracy, trickery and 'sham' contrivances, as well as cases of fraud by third parties.

Footnote 8 of the final Protocol has been inserted to make clear that for the purposes of the illegal or improper purpose principle, the relevant distinction is made between a communication made in furtherance of an illegal or improper purpose (which is non-privileged communication), as compared with a communication made for the purpose of seeking advice in relation to a criminal or other matter at law (which may be privileged).

Section 125 of the Evidence Act 1995 (Evidence Act) is about adducing evidence in court proceedings, not about the law of privilege. Further, the reference to civil penalty in section 125 of the Evidence Act does not extend to administrative penalties. Civil penalties and administrative penalties must not be conflated as they are not comparable. In any case, it is for the courts to determine finally whether anyone is liable for penalties which occurs at the conclusion of audit or review process not while the Commissioner is still gathering facts. Therefore, this exception cannot be practically applied.

Subparagraph 25(n) of the draft Protocol will discourage taxpayers from seeking advice about the application of Part IVA of the ITAA 1936, transfer pricing and other provisions for fear that it would not be privileged. It would be contrary to public interest to penalise and discourage the seeking of such advice.

If any reference to civil penalty is to be maintained, the final Protocol should clarify that this does not extend to administrative penalties such as those imposed under Division 284 of Schedule 1 to the Taxation Administration Act 1953 (TAA).

We will scrutinise LPP claims made over communications prepared in furtherance of a dominant purpose that is merely designed to obscure or hinder the Commissioner's understanding of a transaction.

We will also scrutinise LPP claims made over communications prepared in furtherance of a dominant purpose such as tax avoidance.

Alternatively, the final Protocol should clarify or remove the following:

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Subparagraph 25(m) of the draft Protocol should be removed as there is no tenet of law that provides that documents which are otherwise privileged would lose their status because the documents or communications designed to obscure or hinder the Commissioner's understanding of the transaction.

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Subparagraph 25(n) of the draft Protocol should be removed as there is no basis in law to exclude communication made in the context of a transaction or arrangement in respect of which the Commissioner determines a penalty arises under Subdivision 284-C of Schedule 1 to the TAA from being privileged. There are also practical difficulties with the proposition in subparagraph 25(n) of the draft Protocol.

Paragraph 37 of the final Protocol states that taxpayers can engage with us early to explore their concerns about following any of the recommended particulars.

Paragraph 34 of the final Protocol states that taxpayers are not expected to waive LPP when following the Protocol. The paragraph also provides that where practitioners are assisting taxpayers in responding to the Commissioner's formal information gathering notice, the Protocol does not intend for practitioners to advise their clients in a manner that is contrary to their professional obligations. See also paragraph 10 to Addendum 1 to the final Protocol.

This does not extend to specific particulars required for in-house counsel.

The terms 'standard particulars' and 'additional particulars' have not been included in the final Protocol. We have, however, retained the approach based on the type of service or engagement, as we think this approach provides a balance by providing fewer particulars in certain situations and will allow us to quickly decide how to treat a claim for LPP.

Provision of legal services by 'traditional' law firms regularly involves non-legal practitioners. Therefore, the MDP arrangement is no different to a traditional law firm.

The final Protocol should not be suggesting that if additional information requested in paragraph 30 of the draft Protocol is not provided, the ATO will view the claimant as not complying with the Protocol and a presumption will arise that the ATO will challenge the LPP claim. The ATO must still make an assessment based on the information which has been provided.

It is inappropriate for the Commissioner to seek to suggest to the market that advice provided by a lawyer providing legal services through an MDP structure will be subject to a greater level of scrutiny than advice provided by traditional law firms.

The final Protocol should clarify that the requirements in paragraph 30 of the draft Protocol are required of all services or engagements involving non-legal practitioners irrespective of the firm structure within which that service or engagement is provided.

Also, the difference between category 1 and category 3 type services or engagements created by the recommendation for category 3 (involving non-lawyers) to explain the main purposes as well as the dominant purpose should be removed.

The final Protocol should also clarify at paragraph 11 that the involvement of junior non-lawyers acting under the direction, or supervision, of lawyers will not trigger the 'specific' assessment category. It is suggested the following words be added to the first and third rows of the table:

... other than non-lawyers acting under the supervision or direction of a lawyer to whom they are subordinate (such as, for example, paralegals, clerks, law graduates and executive assistants.

Services or engagements involving traditional law firms with non-legal persons or legal practitioners not acting in the capacity of legal practitioners will be considered under the third category of service or engagement (see Table 1 of the final Protocol).

Where a taxpayer does not follow the recommended approach, there is no presumption that the LPP claims are invalid or will be challenged by us. However, where a taxpayer does not adequately explain why they have not followed the Protocol and we are of the view that we do not have sufficient information to properly make a decision on a claim, the taxpayer can expect us to make further enquiries. This may involve, in some situations, us issuing a formal notice requesting relevant particulars of an LPP claim.

The first category of service or engagement in Table 1 of the final Protocol has been amended to include paralegals, clerks, law graduates, executive assistants and similar non-legal persons acting under the close supervision and direction of the legal practitioners to whom they are more junior, less experienced and subordinate.

We have retained the approach based on the type of service or engagement, as we think this approach provides a balance by providing fewer particulars in certain situations and will allow us to quickly decide how to treat a claim for LPP.

We will closely scrutinise any arrangements or relationships (whether services or engagements involving only legal practitioners or services or engagements involving non-legal persons) which purport to improperly claim LPP to the detriment of us being able to properly administer the tax and superannuation laws.

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What is the standard of proof when it comes to establishing the dominant purpose in subparagraph 25(a) in Step 1.3? Does the ATO require taxpayers to conduct a detailed forensic analysis of the purpose(s) of each communication to determine the dominant purpose?

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How should the communication referred to in subparagraph 25(b) of the draft Protocol be assessed? Is the contemplation of obtaining legal advice based on the client's subjective intention or is it assessed objectively? The final Protocol should acknowledge that if a client approaches a lawyer seeking advice there would be a presumption that a client approaching is seeking legal advice.

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The reference to confidentiality in subparagraph 25(e) of the draft Protocol is as to the context of the communication and not the physical location.

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Documents lodged with or provided to a lawyer simply for the purpose of obtaining immunity from production referenced in subparagraph 25(f) of the draft Protocol will not be subject to privilege where the dominant purpose of the communication was not to obtain or provide legal advice, or for actual or reasonably anticipated litigation.

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Subparagraphs 25(i) and (j) of the final Protocol should acknowledge that a copy of a document can be privileged if it is made for the dominant purpose of obtaining legal advice even if the original document is not.

It is acknowledged that the performance appraisals are unlikely to be privileged as noted in subparagraph 25(r) of the draft Protocol. However, the final Protocol should clarify how such documents go to the assessment of any tax issue otherwise it should be removed.

Subparagraph 25(b) of the draft Protocol (now subparagraph 29(a) of the final Protocol) refers to the client's contemplation in obtaining legal advice where the elements of LPP may not be met.

Subparagraph 25(e) of the draft Protocol (now subparagraph 25(b) of the final Protocol) has been amended to refer to communications not being intended to be confidential.

Subparagraph 25(f) of the draft Protocol (now subparagraph 29(b) of the final Protocol) has been amended to include the additional wording '... where the dominant purpose of the communication was not to obtain or provide legal advice, or for actual or reasonably anticipated litigation'.

Subparagraphs 25(i) and (j) of the draft Protocol (now subparagraphs 25(d) and (e) of the final Protocol) reference a footnote which acknowledges that a copy of the documents can be privileged if it is made for the dominant purpose of obtaining legal advice or use in, or in relation to, litigation (whether existing or reasonably anticipated), even if the original documents are not.

The Commissioner may seek the production of performance appraisals in order to make a decision as to whether or not to review, accept or challenge a claim for LPP (as opposed to making an assessment of the underlying tax issue).

Abuses of this nature need to be addressed. However, they are considered to be rarely encountered, are not the norm in behaviours of practicing lawyers in Australia or clients for whom they act and should not inform a Protocol that is designed to apply across the board. For example, subparagraph 16(a)(ii) of the draft Protocol requires the evaluator to address each of the ATO's administrative concerns rather than assess whether the lawyer-client relationship exists as a matter of law and the dominant purpose of the communication.

We see LPP claims that we consider to be reckless or knowingly false or misleading and made to obscure facts from us. We have seen claims of privilege over thousands or even tens of thousands of documents, but when we ultimately receive the documents, we are of the view that they were never privileged.

Resources and time are being spent to deal with, and resolve, LPP claims, and their resolution in some cases is delayed because we do not have sufficient information to make a decision on whether or not to review, accept or challenge these claims.

Listing the areas in Addendum 1 to the final Protocol highlights those concerns and puts taxpayers on notice of the matters which the ATO will pay close attention to.

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replacing the heading above paragraph 28 of the draft Protocol from 'standard particulars' to 'ATO's preferred particulars'

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replacing the phrase 'recommended approach' with 'the ATO's preferred approach'

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replacing the second sentence at paragraph 6 of Addendum 1 to the draft Protocol with

Our information gathering activities are directed to obtaining access to the facts which help us to make a correct assessment of tax, and our intent is to support you to make LPP claims where the communications covered by a formal notice are privileged

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replacing the opening words at paragraph 7 of Addendum 1 to the draft Protocol with 'Our expectations in relation to the respective roles with regard to LPP can be summarised as follows', and

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deleting the first sentence in paragraph 11 of Addendum 1 to the draft Protocol.

The following terminology has been revised in the final Protocol:

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It is made clear that its purpose is to recommend an approach which, in our view, will best assist us in deciding whether to accept, review or challenge an LPP claim (see paragraph 2 of the final Protocol).

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References to 'standard particulars' have been removed.

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Paragraph 6 of Addendum 1 has been amended to include the following wording:

Our information gathering activities are directed to obtaining access to facts for the purposes of the administration or the operation of a tax law (including making a correct assessment of tax), and our intent is to support you to make LPP claims where the communications covered by a formal notice are privileged.

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Paragraph 7 of Addendum 1 has been revised as follows:

Our expectations in relation to the respective roles of taxpayers, advisors and the ATO in regard to LPP can be summarised in the following table. The court is the ultimate decision maker in respect of LPP claims.

The first sentence in paragraph 11 of Addendum 1, relating to us being required and entitled to full access to facts, has been removed in the final Protocol.

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request further information

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issue a further formal notice to obtain compulsorily particulars of communications over which privilege has been claimed, or

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commence declaratory proceedings.

Paragraph 7 of Addendum 1 to the final Protocol provides that the court is the ultimate decision maker in respect of LPP claims.

The final Protocol should allow taxpayers and advisors to provide the particulars for an LPP claim in other formats than the prescribed ATO forms

Additional wording has been included at paragraph 33 of the final Protocol to clarify that taxpayers can use their own forms or schedules other than the prescribed ATO form. However, they should include the same information as requested in the ATO form.

The table at paragraph 7 of the draft Protocol should be revised to state that taxpayers can claim LPP 'when it is available' as they are entitled to do at law, not 'only where it is appropriate'.

Table 3 of Addendum 1 has also been revised to state that we expect taxpayers to claim LPP in accordance with the principles of LPP.

The Protocol should explain the ATO's position on prosecution on an LPP claim that is not ultimately successful.

The Commonwealth Director of Public Prosecutions (CDPP) is charged with responsibility for the carriage of all prosecution matters relating to offences against Commonwealth laws. Whether we decide to refer a matter for prosecution will depend on our CDPP referral guideline, and the Commonwealth prosecution guidelines.

The Protocol needs to clearly state that taxpayers will not be compelled in the context of paragraph 8 of the draft Protocol to provide the detail required in a different process.

The existence of potential ramifications for not complying with the Protocol undermines its voluntary nature. The final Protocol should not place undue burden on taxpayers who choose not to comply with it, provided they comply with the law in claiming LPP.

We need a certain amount of information to decide how to deal with an LPP claim.

Further enquiries may involve, in some situations, us issuing a further formal notice to obtain compulsorily particulars of documents over which privilege has been claimed (insofar as those particulars do not disclose the privileged contents of those documents); see CUB Australia Holding Pty Ltd v Commissioner of Taxation^[6].

The draft Protocol in some places refers to 'specific capacity' and in others to 'capacity'. One expression should be used if no difference in meaning was intended.

In the final Protocol, we have replaced the references to 'specific capacity' with 'capacity', so that one expression is used throughout.

How does the LPP Protocol interact with the accountants' concession?

The LPP Protocol does not apply to accountants' concession claims.

Where a request is made under the Freedom of Information Act 1982, the relevant agency or minister responding to the request is required to comply with their obligations under that Act and its associated regulations. This includes explaining a decision not to grant access to a document as it is an exempt document due to LPP.

In support of a claim for LPP or a decision not to grant access to an exempt document in respect of a Freedom of Information request, the Commissioner is bound by the law (not the Protocol), including all applicable statutory obligations and frameworks.

The ATO should seek to understand the reasons for non-provision of the recommended particulars.

The final Protocol should contain a positive statement about the use of technology and the types of benefits that the ATO sees can be obtained through its proper use.

Stakeholders welcome the opportunity to engage further with the ATO on this.

We will be seeking, through a consultation process, to better understand how computer-assisted technology will assist us in determining whether to accept, review or challenge a claim.

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identifying documents responsive to a formal notice

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assessing privilege claims, and

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extracting details for the purposes of providing particulars to support a claim by automatically completing certain particulars, which can improve the consistency and the quality of the claims.

The final Protocol should clarify that it is concerned with the use of technology to determine whether the communication is subject to privilege.