Judicial review of the Acccountants' Concession : a case for improving tax administration and accountability

Judicial review of the decision of the Australian Taxation Office ('ATO') to lift the Accountant's Concession has proved a fruitless and expensive exercise for taxpayers. The Accountant's Concession lays down administrative arrangements restricting access to papers prepared by professional accounting advisers. While it has been suggested reliance on 'exceptional circumstances' to lift the concession best serves capital and tax markets, elsewhere it has been argued that the concession must be rethought if the policy of enabling full and frank disclosure is to be achieved. This article examines initiatives aimed at shielding tax advice of accountants from the Tax Commissioner's coercive access powers under the Income Tax Assessment Act 1936 (the 'Act') and elevating the current administrative arrangement into the statute. This would make the limited procedural legitimate expectation a substantive procedural right. This would remove the different treatment of lawyers and accountants offering tax advice and eradicate the delays and uncertainty associated with the separate tax advice privilege recommended by the Australian Law Reform Commission.