Matching actions and words
The preceding chapters highlight the importance of consistency and accountability in tax administration practices to provide fair treatment of taxpayers and maintain confidence in the tax system.
One important way of helping to cement these principles in the practices of the Australian Tax Office (ATO) is to have clear, user-friendly and accessible public documents which outline its role and clarify its responsibilities in carrying out its duties. Similarly, other documents should articulate the rights of taxpayers when engaging in the tax system and what their obligations are with respect to that system. Such material provides guarantees about the integrity of the ATO’s behaviour and actions and commits, in a practical way, to the fair treatment of taxpayers.
The guidance material and documented commitments about ATO culture and actions, and what the ATO stands by and publishes, is explored in this chapter.
It is evident that the value of an operational pledge is questionable if its use is not built into the day-to-day considerations of ATO administrators. In his 2016 review of the Taxpayers’ Charter, the Inspector-General of Taxation (IGT) stated that:
The ATO is seeking to embed a better client experience in all its interactions with the community through its reinvention program.
As the ATO’s ‘reinvention’ continues (as discussed in Chapter 2, now projected forward to 2024), the day-to-day operations of tax administrators should reflect the superior client experience the Reinvention Program aimed to provide.
This chapter considers the value of the ATO’s current behavioural practice commitment—the Taxpayers’ Charter—which formalises the identified rights and responsibilities of taxpayers and pledges particular behaviour by the tax administrator.
The Committee announced, in its media alert for the inquiry hearing on 29 June 2018, its intention to review the currency of the Taxpayers’ Charter and explore the value of adopting an ATO Regulatory Philosophy document. The Committee also recommended in its report Taxpayer Engagement with the Tax System, presented 10 September 2018, that ‘the ATO consider adopting a Regulatory Philosophy to codify the principles on which it will administer tax laws and engage with taxpayers’. The Government is yet to respond to the report however the Committee tested the proposal with key witnesses during this inquiry and received feedback in submissions.
As such, this chapter further explores the merits of the agency having a separately documented regulatory approach or regulatory ‘philosophy’, which identifies the key considerations of the regulator in administering and enforcing regulatory functions. Discussion on the Model Litigant Obligations (MLO) and the scheme for Compensation for Detriment caused by Defective Administration (CDDA) has been discussed from the taxpayer perspective in previous chapters. These form an important function in supporting the fair treatment of taxpayers when in conflict with the ATO.
Establishment of the Taxpayers’ Charter
The current Taxpayers’ Charter is founded on a document first developed in July 1997 to assist taxpayers understand their rights and obligations as the tax system moved to a self-assessment compliance model. The self‑assessment approach required taxpayers to accept more compliance responsibility as the ATO afforded greater trust in their behaviour and of their understanding of a complex tax system.
In return, taxpayers were not subject to as regular scrutiny but they bore greater uncertainty over whether their tax affairs met with ATO approval. This gave rise to the need for a public statement to give taxpayers a formal level of assurance that if they behaved in a fair, honest and timely manner that they would be afforded fair, honest and timely treatment from the ATO.
What does the Charter cover?
The Charter essentially states the ATO’s service standards, complaint handling processes and review procedures and specifies the behaviour it expects of taxpayer engagement. Professor Miranda Stewart summarises:
The Charter commits the ATO to treating taxpayers fairly and reasonably; offering professional service; explaining the decisions it makes about a taxpayer; and respecting the right of a taxpayer to make a complaint. The Charter establishes an overarching framework for ATO dealings with taxpayers. I note that it does not specifically establish a framework for interpretation or consultation, or other aspects of “regulation” by the ATO.
The Charter is not an agreement between parties—it merely reflects a commitment from the regulatory agency or ‘service provider’ and details a group of expectations of taxpayers or ‘clients’. It is not a guarantee as it doesn’t provide service commitments nor compensation in measurable terms; and it doesn’t have the force of law. As the former IGT Mr Ali Noroozi explained the Charter is ‘basically a series of expectations’.
The Charter is therefore more akin to a ‘mutual agreement’ outlining the conventionally understood mode of behaviour, and is thus, like the tax system itself, based on the honour of the parties. It can be viewed as seeking to achieve desired outcomes by providing information to taxpayers as to the actions or behaviour that the ATO expects. This can provide an incentive for taxpayers to act according to the Charter standards in order to obtain the promised service standards, including protection, contained in the Charter.
The Charter also seeks to set internal standards for how ATO staff should interact with taxpayers and the outcomes and service standards desired by ATO management. There may be other internal documents that seek to set internal standards, however the Charter is unique in that it is a publicly available document, with the increased likelihood of external scrutiny for failure to comply. The Charter thus provides transparency and accountability.
Internal and external reviews of the Charter since inception
After it was introduced in 1997 the Charter was internally updated in 2002‑03 and underwent its first external review by the Australian National Audit Office (ANAO) in 2004. That audit found that the ATO:
…is managing its responsibilities under the Charter. The ATO has systems and processes to develop, maintain and review the Charter.
The ANAO noted the three tools the ATO was using to engender client engagement and community confidence in the revenue system: The Taxpayers’ Charter, the Compliance Model and the ATO Brand. It also concluded that there were areas to improve to meet the challenge of the ATO ‘living’ the Charter. In other words, to embed the principles and commitments in ATO day-to-day thinking and activity.
Some of the methods included developing protocols and procedures to inform taxpayers of relevant Charter rights and obligations as a normal part of interactions with the ATO. Another recommended developing a Corporate Management Practice Statement to provide guidance to ATO staff on how they would meet the Charter commitments in fulfilling their standard activities and to finalise their ‘Charter measurement strategy’. The ANAO noted that:
At the time of the audit the ATO did not have a strategy or a systematic approach to measure its performance against the Charter principles. The measures being used provided limited assurance that practices and procedures comply with Charter principles.
Developing the Charter and attending to these recommendations was taken seriously and was clearly quite a task as the ATO at that stage had a dedicated ‘Charter Section’ of the ATO. The ATO agreed to the recommendations, made updates in 2005 and at the time of the follow-up audit in 2008 the ANAO reported that the ATO was performing admirably in embedding the Charter into ATO culture and in developing measurements via analysis of complaints feedback. It did recommend, however, that the ATO:
Expand the current complaints reporting and trend analysis function to benchmark current performance; and improving the required system functionality for complaints reporting and analysis.
The next substantive update activity occurred in 2010 and then this was the last notable change before the Inspector-General of Taxation completed a review of the Taxpayers’ Charter and taxpayer protections more generally in December 2016.
In the most recent review the IGT recommended amendments and consultation input from stakeholders as follows :
The IGT recommends that the ATO:
promote and educate taxpayers and tax practitioners about the Charter and in particular draw their attention to its principles at the outset of interactions which are likely to generate dispute or disagreement, such as reviews, audits, objections and litigation;
treat allegations of any breaches transparently and address them independently of the substantive issues;
enhance staff awareness and understanding of their obligations under the Charter through more practical training and guidance;
improve its monitoring and reporting of the Charter by matching complaints cases against the Charter principles and publicly reporting on its annual performance; and
consult with stakeholders on updating the Charter and in particular consider the following:
the need to include any higher standards set by the ‘Reinvention Program’;
its application to digital interactions, tax practitioners when acting as agents or in their personal capacities and the interaction between taxpayers and any external service providers engaged by the ATO;
the impact of any recent law changes or evolution in tax administration and whether any additional or existing ‘rights’ should be incorporated;
the need for a clear statement that Charter ‘rights’ are not contingent on taxpayers discharging their ‘obligations’; and
the most effective way of presenting the Charter, such as a single page summary of all ‘rights’ and ‘obligations’ with links to further information.
While the Charter has been amended and updated over time the tax system has moved through significant changes in global economies, the restructuring of the labour market, shifting relative importance of economic sectors and rapid uptake in digitisation over the last five years.
The IGT recognised this in his 2016 review calling for consideration of the application of the Charter in digital interactions and those relating to agents (whether in a professional or personal capacity).
Both the 2008 ANAO review and the 2016 IGT report made recommendations regarding embedding the spirit and principles of the Charter into ATO business activity, and promoting enhanced staff awareness and understanding of their obligations under the Charter.
Importantly, all reviews identified a need to develop benchmarking measures to report on ATO commitments to the Charter, yet responding action to date has been weak. The ATO’s response to the most recent IGT review recommendation of ‘improving its monitoring and reporting of the Charter by matching complaints cases against the Charter principles and publicly reporting on its annual performance’, for instance was met with an agreement in principle that has yet to be developed or reported on.
The Inspector-General of Taxation was particularly disappointed with this response as he believed that it was preferable to have robust public performance measures to make the ATO publicly accountable to the Charter than to provide enforceable rights which would advantage taxpayers who could afford a legal fight.
The Charter’s interactions with the Cooperative Compliance Model
After the 1997 introduction of the Charter, in 2000, in an attempt to improve voluntary compliance in its Large Business and International segment, the ATO adopted the Cooperative Compliance Model (CCM). This was a theoretical model of taxpayer compliance levels and commensurate regulatory and enforcement approaches. It was adapted from a model of taxpayer behaviour which was first developed by the Cash Economy Taskforce in 1998.
The CCM captures environmental information that may impact on a taxpayer’s compliance levels. It was designed to provide an appropriate regulatory and enforcement response to various taxpayer stances—from fully compliant to fully non-compliant. The model assumes that most taxpayers are committed to complying.
Professor Valerie Braithwaite of the Regulatory Institutions Network at the Australian National University (ANU), explained the essence of the compliance model:
With the compliance model, yes, you have your laws and we’re going to enforce those laws, but, first of all, let me explain to you how you can comply with these laws. Let me help you in every way that I can, but know that if you will not cooperate and try to do the right thing, eventually, I’ll have to enforce these laws and that enforcement can restrict your freedom substantially. The compliance model is all about maximum freedom. Yes, the law is there so that’s going to frame what I do, but you have maximum freedom in actually obeying that law, and if you don’t I will, as a regulator, increasingly intrude upon your freedom, and I will take that away in order to enforce the law.
The impetus for the CCM, and the Taxpayers’ Charter—which was developed shortly before—was to embed taxpayer commitment and the community’s understanding that even if taxpayers willingly comply that there was still the possibility of audit and the need to verify self-assessed returns. It has been argued that the CCM was developed partly in order to ‘administer the taxation system equitably and efficiently’ and that efficiency was to play out ‘by focusing its [the ATO’s] limited resources on noncompliant taxpayers only’.
The Senate Economics References Committee stated in its report:
In principle it is straightforward: all taxpayers should be treated equally in accordance with the tax law. In practice, however, it is not so clear cut. Providing equitable treatment is difficult in a society with economic divisions. For the ATO, this difficulty is compounded by the complexity of the tax system.
The gentle approach to deterring non-compliance was the focus of the model and based on the notion of equitable punishment. This arose out of concerns that PAYG and small business taxpayers were being ‘singled out for the ATO’s attention while large business and the wealthy were not’. The concern was to not undermine the level of compliance and trust in the regulator by being heavy-handed with the smaller taxpayers. As such, the ATO developed a package of disciplinary tools to improve compliance through behavioural sciences. The Charter was a part of that package. It not only provided guidance and expectations but acted as a behavioural tool to engender trust and confidence in the tax administrator and for taxpayers to do the right thing.
The CCM was developed to work with the Taxpayers’ Charter—it was designed to improve the use of the Charter by expressing to taxpayers, and to ATO officers, the ATO’s regulatory approach with respect to the sliding scale of compliance and enforcement measures. Professor Braithwaite explained:
…the ATO’s Compliance Model is an important complement to the Taxpayers’ Charter. The Compliance Model conveyed a regulatory philosophy that reinforced the Taxpayers’ Charter but openly explained to taxpayers that the ATO would enforce the law and not turn a blind eye to abuses of the tax system.…
In accordance with the Charter, taxpayers who were considered non-compliant by the ATO were identified and given an opportunity to explain themselves and comply. In circumstances where cooperation was not forthcoming, the Compliance Model articulated a set of actions that the ATO would take in order to ensure compliance. The actions increased in intrusiveness, with actions being expedited in cases where there was no reasonable explanation for non-compliance and no attempt to sort things out.
Similarly, the Inspector-General of Taxation took this view too: ‘Certainly I think the compliance model is something you should look at too. That may be more aligned with the regulatory philosophy.’
It appears that at some stage the special relationship between the Charter and the CCM has been down-graded such that the Charter is autonomous and appears to have no contextual relationship to the CCM (which reflects the administrators’ ethos with respect to compliance enforcement).
The CCM, which is a succinct one-and-a-half pages long, is now on the ATO website within a composite PDF document package on managing the tax and superannuation systems, alongside the Corporate Plan and the Reinvention Program Blueprint summary. This location bears some relationship to the Program Blueprint’s ‘tailored engagement based on risk’ approach.
In contrast to the CCM enforcement philosophy, which is predicated on sliding scales of proportionate enforcement depending on levels of compliance (whether deliberate or unintentional); the tailored engagement approach is based on the perceived risk of a taxpayer’s behaviour and affairs in damaging the tax and superannuation system. As such, a taxpayer perceived to be of high risk activity will receive more compliance focus and support and if they do wrong they will be heavily punished.
It appears that both the CCM and the tailored engagement approach within the Program blueprint are components of a matrix forming the ATO’s regulatory approach. This is supported by commentary by Mr Noroozi, the former IGT, at the 29 June hearing when he said:
The ATO has the compliance model, the pyramid… so you need to also think about that and how they all fit together. Then, of course, on top of that, you had a new commissioner come in with the reinvention. The comments I’ve made about this is it is a very big thing that seems to be going on forever. It’s not something that’s well defined with short-term and long-term goals that can be easily measured.
Accessibility of the Taxpayers’ Charter
A further consideration in review of the Taxpayers’ Charter is its accessibility in the current electronic format. The Committee notes that, in keeping with the shift to digitised information, the majority of ATO guidelines are produced in an electronic format only—or exist as web-based information combined with other matter within a larger PDF format document.
This pattern of document delivery has its limitations even for areas which may reasonably be expected to be updated at semi-regular intervals. This issue was noted by one submitter to the inquiry:
The boasted reduction in content from the ATO website has removed or amended much of the content relied on by taxpayers. There should be a new QC number for each change of view, not a continually changed version of the same QC. A searchable archive should be available to all taxpayers for all removed and/or replaced information.
In addition to the practical impediments that this produces, including the inability to view, download or print a compete publication format document in one action, it also creates uncertainty as was mentioned by the preceding commentary on the static nature of QC (identifier) numbers yet various updated components may exist within the one subject area.
In November 2018 the Charter was ‘refreshed’ to improve access to information by providing a summary ‘rights and obligations’ page, along with other improvements which are reviewed later in this chapter.
However, the Committee noted with concern in review of the online version that as at 19 January 2019, the released version dated 20 November 2018 already contains no less than three different dates of updates within the web-based format. There is a clear lack of finality and certainty with this. In addition, a web-only version which does not allow an independent Charter document to be accessed underplays the importance the ATO places on the Charter.
The practical deficiencies in having a solely web-based publication which is not in a traditional publication format, like the format of the Corporate Plan or the Annual Report, are discussed under Committee Observations later in the chapter.
Another submitter observed that the annual report boasts reduced website content making navigation easier—but much of this is vital content for taxpayers. A similar observation might be made about the hardcopy index which in many instances does not provide common English terms for even major operational functions and no page direction to find them.
This applies equally to the accessibility of the Taxpayers’ Charter. The Charter is not available in as a single downloadable publication format document (separate PDF document) with consecutively numbered pages. Moreover, the html version is a mix of multiple disparate referenced webpage links requiring a reconciliation process to ensure all sections are obtained—but provides no guarantee of completeness, and is confusing for even a professional user.
The biggest and potentially most damaging issue in terms of organisational integrity of a purely web-based publication such as the format of the current Charter is the unfixed date of review within the document, ease of updates and the removal of prior sources. It makes reconciliation or awareness of the current state of the Charter near impossible. This has been reported as occurring with other guidance publications on the ATO website. A non‑traditional publication which lacks the formalities of finality and ability to easily reference, ‘as at X date’, creates uncertainty and mistrust and is undesirable in a document like the Charter.
The Taxpayers’ Charter is not a regularly updated document as history shows. It should be largely static and that show of permanence is its strength. It should provide certainty and be a visible brand document. The Charter itself is a philosophical and administrative document, not to be affected by taxation regulatory changes.
Any update to the Charter should be given a unique ATO publication identifier number and any previous versions of the Charter retained on the website in an easily accessible archive.
The Committee recommends that the Taxpayers’ Charter be published in a single consolidated publication version which has consecutively numbered pages and appendices for extraneous or supplementary material, and that:
the Charter’s date of last formal revision will be specified at the front of the publication and it will receive a unique ATO publication identifier; and
previous versions of the Charter at applicable dates will be available on the web and to the public on request.
The Charter and the Reinvention Program
In this review, the Charter was considered in the light of exploration of the following matters in previous chapters, including:
the ATO’s ongoing commitment to cultural change under its Reinvention program; and
the recent public airing of concerns about administrative processes and protections for taxpayers in tax disputes.
The Taxpayers’ Charter is a key public document and agency commitment representing a mutual understanding between the ATO and taxpayers about what to expect in different interactions. As it aims to govern all these interactions it should therefore exemplify the spirit of the ATO’s reinvention ethos in a very practical way.
The ATO’s current published Strategic Direction document highlights the focus on building a culture of integrity and to transform the client experience likewise:
We are well advanced along a path of reinvention. This journey over the next few years focuses us on changing how we operate to better meet the needs and expectations of the community, while delivering on our commitments to government and the community. We are also focused on building on our culture of integrity and making the necessary cultural changes to align with the transformed client experience.
Professor Braithwaite referred to research conducted by the staff in the ANU’s Centre for Tax System Integrity between 1999–2006 highlighting the role of the Taxpayers’ Charter in underpinning procedural fairness:
The ATO instrument that was most important in driving cooperation between taxpayers and the ATO was the Taxpayers’ Charter because it aligned very well with taxpayers’ notions of procedural fairness. Procedural fairness as understood by taxpayers means being treated in a respectful manner, being assisted to comply and be given a fair hearing, having an explanation for decisions so that one does not feel discriminated against or that one does not feel treated in an arbitrary or incompetent manner.
The Charter was also a tool for calibration of the ATO’s Reinvention of its compliance culture. Australian taxation expert academic Mr Robert Whait wrote in 2014 that the ATO’s self-assessment compliance model:
…focuses attention on the ATO’s realisation that a more strategic use of its power could achieve greater long-term compliance. It also focuses attention on the ATO’s realisation that the observation of taxpayers alone can improve compliance. These conclusions have implications regarding the use of probability of detection, risk assessment and data gathering procedures to improve compliance which are discussed.
The first formal support for the Charter appears to have come from the Joint Committee of Public Accounts and Audit in 1993 which also recognised that there was a power imbalance between the ATO and the taxpayer to be addressed. In 1997 the Charter was launched and circulated to taxpayers with the TaxPack. However, in 2000, the Senate Economics References Committee reviewed the Charter and concluded that inequities remained in the ATO’s treatment of taxpayers because the Charter lacked acceptance within the ATO noting: ‘Pockets remain among ATO staff that are resistant to the spirit and approach exemplified in the Taxpayers’ Charter’.
As discussed in Chapter 2, Commissioner Jordan’s Reinvention program undertook to drive agency-wide cultural change in tandem with the digital reinvention of tax services (under the ATO’s Reinvention Blueprint 2015). In 2016, the IGT’s review of the Taxpayers’ Charter reported a 2014 ATO staff survey which suggested some progress—with 95.7 per cent of staff responding affirmatively to the question ‘Are you aware of the key messages and your responsibility in relations to the Taxpayers’ Charter, complaints and compliments?’.
However at hearings in June 2018 the Inspector-General referred to the risk that staff (and taxpayers) could now have ‘Reinvention fatigue’. He also noted risks in the lack of cohesiveness among multilayered ATO compliance and vision documents, concluding: ‘so you need to also think about that and how they all fit together’.
As complaints administrator, the IGT highlighted in particular the potential for conflict between the compliance and rights ethos underpinning the ATO’s reinvention and its expression in the Charter, as a ‘rights and obligations’ document.
Certainly I think the compliance model is something you should look at too. That may be more aligned with the regulatory philosophy. But, as I said, we did a review into the taxpayer charter because what taxpayers and tax professionals were saying was, there are all these high principles in the taxpayer charter, like, ‘Effectively, you’ll be treated fairly; you can expect these things from us.’ But what they were saying was: if there was a breach of any of these high principles, there was nothing they could do about it.
The IGT went on to say that he considered there was now within the Charter a reasonable balance of values with enforceable measures, but that the Reinvention had raised the bar, which must be met:
Where we came to with this was that the taxpayer charter is good. The Commissioner says that he believes his reinvention is going to go beyond the taxpayer charter. That’s all good and well. If it is, then these higher standards need to be captured somewhere, and we said that they should update the taxpayer charter to the extent that reinvention has in fact extended it.
The IGT’s Mr Duy Dam, Director, Tax Complaints and Review, referred to the potential of the Charter to set down standards for the ATO’s approach to contentious matters which fuel complaints(as set out in evidence in Charter 3 of this report), noting:
Two elements that don’t appear in the Australian charter are principles of certainty, clarity and finality and then a proportionality requirement of the conduct of audits, debt collection, reassessment, prosecution and penalties. They tend to be areas where, if someone feels aggrieved that you are pursuing them so heavily for this tiny little thing, that’s what triggers quite a lot of complaint.
Also discussed in Chapter 2, was the ANAO’s Audit of the Reinvention program in 2017 which found that core cultural change reportage under the Reinvention program is weak. Mr Andrew Morris, Executive Director, Performance Audit Services Group, also advised that while the ANAO had not recently reviewed the Charter, the ATO’s accountability to it relied on it having ‘measures in performance statements and having meaningful benchmark targets’ aligned with Charter values.
Mr Morris went on to highlight the potential for reporting against values such as fairness in the Charter:
I think there were elements there that we saw to do with fairness or to do with feedback that could be included in the Charter. There were some elements in the charter that didn’t have targets. I think if you have charter measures, it’s important that they have meaningful targets and not just a target that’s better than last year. If it’s something like fairness in disputes, which is in the mid-50 per cent satisfaction, or being receptive to feedback, which is similar, I think there should be a target. There should be a target that’s a reasonable community baseline. Just having a look on the website, they didn’t have targets, for example, against the feedback one. That would be useful. Some of the same measures are in their performance statements, and they do have targets, but in the service commitments they don’t have targets. It would be good to have targets and stretch targets and to make sure they are covering elements of fairness and feedback as well.
The best indicator of Charter performance is feedback on whether the ATO is operating within its values. As discussed in this report, taxpayers in dispute with the ATO appeared to be aware of the document and had expectations that the ATO would honour commitments in it.
Unfortunately, however, many were disappointed. Submission 26 (Name Withheld), for example, maintained that the ATO ‘Failed to respect the spirit of the Taxpayers Charter’ observing:
The ATO needs to comply with its claims of Reinvention and with the terms of the Taxpayers Charter. In the taxpayer’s experience, all have been ignored.
Given recent public concerns and feedback to this inquiry about behaviours allegedly exhibited in contravention of the Charter and procedural fairness, the Committee believes more work needs to be undertaken to update staff on Charter values, to bring consistency and complementarity to core mission and service documents and to benchmark performance against values.
The Committee noted that the ATO is not currently explicitly reporting on its performance to the Taxpayers’ Charter. Instead in the 2016–17 (and the 2017‑18) annual report, the ATO reports on service commitments under categories, which are listed in Table 5.1, shown in Chapter 6 of this report.
Approximately half of the outcomes relate to targets of timeliness and the remainder are qualitative, subjective assessments of service performance gleaned through the feedback from stakeholder surveys. While this would appear to meet the reporting expectations for service charter agreements, the ATO’s service commitments differ from the Taxpayers’ Charter in quite fundamental ways.
There is no mention in the annual report of outcomes under the service commitments exemplifying, or reconciling to, in any way, the ATO meeting its commitments under the Taxpayers’ Charter. There is also no other commentary about the ATO meeting its promises under the agreement and how it fared compared to other reporting periods.
The Committee firmly believes that the ATO should formulate appropriate benchmarking of the key elements of the Charter and report on these in the annual report, whether by clear reconciliation of appropriate and relevant service commitment indicators or by other well calibrated indicators which reflect the unique standards and pledges that only the Charter contains. The development of appropriate benchmarks and reporting on Charter principles will help to entrench the values of the Charter in Tax Officers’ activities and considerations.
In addition, the Committee recommends that annual reporting commentary surrounding the performance of the ATO to its commitments under the Charter be included. This will give the Charter better visibility and meaning for both stakeholders and ATO staff.
The Committee notes the Charter is barely mentioned in recent annual reporting and, given the weight afforded to it as a tool to promote confidence in the administrator, this must change.
The Committee recommends that the ATO considers and formulates appropriate benchmarking performance indicators to assess its performance against the Taxpayers’ Charter commitments; providing both quantitative and qualitative assessments.
The Committee also considers that the IGT should report on any breaches recognised, whether by the ATO or taxpayers, so that the mutual obligations of both parties are transparent and would bolster the Charter processes in staff activity and reduce complaints where the taxpayer has been guilty of overt non-compliance.
The Committee recommends that at the conclusion of every formal complaints investigation undertaken by the Inspector-General of Taxation, that the IGT’s Office should document ATO and taxpayer engagement interactions against their Charter obligations and report data aggregates on these in the IGT’s annual report.
Adopting a regulatory philosophy—Charter effectiveness
As discussed, the Taxpayers’ Charter is not about how the ATO will interpret or administer the law per se, whereas an organisation’s Regulatory Philosophy is more targeted at how a regulator will actually fulfil its regulatory obligations.
Professor Braithwaite suggested that the Tax Office’s unspoken Regulatory Philosophy be that the Compliance Model, or aspects of its recent Reinvention Program Blueprint document, should operate in tandem with the rest of the environmental tax system structures and ATO guidance notes and management protocols as an important check on abuse of power.
The Professor also reflected in her submission on the manner in which the ATO was reported to have operated with coercive measures when garnishee orders were seemingly employed with a heavy hand during the reporting period, considering that:
This transparency and accountability speaks to the ATO’s regulatory philosophy, that is, the methods and practices used to collect revenue and make decisions on transactions between the taxpayer and the ATO’.
At hearings, she further remarked:
I think the charter and the compliance model are still very relevant to the work of the tax office. I’d be more likely to question the degree to which the charter and the compliance model are guiding the practice of the ATO at the present time.
The Committee investigated whether adopting an explicit Regulatory Philosophy could address the practical and perceived deficiencies within the current Charter. The case for change, supplementation or reframing, was considered by the Committee.
The head of the Civil Aviation Safety Authority(CASA)’s legal unit Dr Jonathan Aleck, instrumental in developing and embedding a Regulatory Philosophy in that agency, stressed that it wasn’t the name or format of the document but the principles in it that matter when it came to influencing agency behaviours. However:
The notion of regulatory philosophy was not a term I was happy with initially because philosophy speaks to high-level notions of concepts and principles and would not be something you could immediately draw down to the coalface of operations. But I think we do our best to say that a philosophical approach means basically a cultural approach and we use the term not interchangeably exactly. If a philosophy directs the way in which you behave and you embrace a philosophy, which then doesn’t force you to behave in a particular way but naturally guides the way you behave, then that’s fine. What they call it is really less important.
Dr Aleck espoused the benefits of articulating in a document, and of embedding in work-practices, the ethos of the agency’s regulatory approach. This document would model the manner in which employees, led by agency heads, would engage at every level providing a consistent approach which aims to minimise the likelihood of shortcomings and deficiencies.
At hearings the IGT distinguished the ATO’s Taxpayers Charter, which sets out ATO and taxpayer obligations, from the CASA document which is primarily a service philosophy articulating CASA’s commitments to clients:
…[the] big difference we noted was that the civil aviation regulatory philosophy is all about what people can expect from them and what they intend to do, whereas the taxpayers’ charter, by its very name, is called the taxpayers’ charter. While they say, ‘These are the things you can expect from us,’ they also say, These are the ’taxpayers’ expectations and responsibilities.’ It does refer to it as ‘taxpayer rights’, but one has to be careful if you call it a right, because many of the rights, or so-called rights, are not legally enforceable rights that are mentioned in the taxpayers’ charter. The tax office does have that.
Professor Braithwaite stressed the importance of trust in the ATO’s relationship with taxpayers and argued it must stay ‘true to its mission and conducting its business in accord with the highest standards of a democratically accountable public institution’.Thus the attraction of a document which states the manner in which the agency will approach administration and enforcement, and the philosophy by which it can be applied organisation-wide.
The evidence to the Committee, then, did not support the adoption of a new and discrete Regulatory Philosophy given the existing Charter and other corporate documents fulfil that function.
Professor Miranda Stewart, for example, argued against introducing another guiding document unless any new document consolidated existing strategy documents:
Given this state of flux regarding the existing Taxpayers’ Charter, I would recommend against the adoption of any new statement of regulatory philosophy by the ATO, which would be layered on top of existing mission and strategy documents as well as the Charter. If, however, the Committee was minded to recommend the ATO adopt such a statement, it would need to fit within the existing regulatory framework of the ATO that includes those documents and ATO statements.
However, it was recognised that there could be greater weighting of obligations on the ATO side to honour its underpinning values and commitments to taxpayers. This raised a range of other questions including whether the Charter should have legal status, as next discussed.
Taxpayers’ Charter in legislation?
The Charter is a mutual set of obligations and is not enshrined in legislation. This fact has led to calls over the years from particular stakeholders for the Charter to be legislated or to have another similar document, like a legislated taxpayers’ bill of rights. For example, Mr John Vincent noted that the Charter has no rule of law and that if the ATO fails to comply with the aspirational statements in the Charter that there are no direct negative consequences.
Professor Braithwaite observed that since the Charter’s introduction digitisation and the change in the economy has introduced new compliance challenges for the ATO, which could merit giving the Charter some legal force:
Since the taxpayers’ charter was developed in 1997, there have been arguments for giving it some legal teeth. The questions are: who would it benefit by giving it legal teeth; and would there be work-arounds anyhow? It’s an instrument that really defines the culture of the ATO and how it engages with people. I’ve been thinking about it a little bit because it’s come up in the context of the Royal commission on banks. To be taken seriously, is it necessary to give these things legal teeth? I’m not the person task on that, but I would say that it’s culture that really matters here and, if giving it legal teeth would improve culture, then I’d say, ‘Give it a go or certainly look into it,’ but, if it’s not going to touch culture, it may be simply an instrument that makes a lot of lawyers very wealthy.
Mr Noroozi, then IGT, took a similar position, noting that the most vulnerable in the tax system are often those who can ill afford to prove a point of law through litigation. Thus any legislative power the Charter could award would be more likely to favour those who can afford to litigate.
As previously mentioned, one of the recommendations in the review of the Taxpayers’ Charter by the IGT was that the Charter should explicitly state that protections to taxpayers under the Charter not be contingent on taxpayers discharging their obligations. This means the Charter isn’t actually a quid pro quo situation, as intended by Professor Braithwaite, who maintained:
The compliance model is all about maximum freedom. Yes, the law is there so that’s going to frame what I do, but you have maximum freedom in actually obeying that law, and if you don’t I will, as a regulator, increasingly intrude upon your freedom, and I will take that away in order to enforce the law.
Professor Stewart referred to the IGT’s critique of the ATO for: ‘setting out “taxpayer rights” in the Charter, on the one hand, while arguing against the conferral of any rights under the Charter in litigation’.
Despite this, the IGT was more of the view that ‘sunlight is the best form of disinfectant’ so that the ATO should measure ‘their performance against the Charter principles and report on it annually’. As such, the IGT saw the main strength of the Charter, particularly for vulnerable or low resourced taxpayers, is that its public assertions can be held up to public scrutiny.
Hence the importance of recommendations made in this chapter to improve reporting and monitoring of ATO performance against measurable Charter benchmarks.
Reforming the Charter
The alternative to adopting a new Regulatory Philosophy document is having a much improved Charter. An improved Charter could:
Implement the IGT review recommendations in a thorough manner;
Integrate the Charter and the CCM together;
Make practical changes to the Charter to improve accessibility and certainty (improve the web format, produce a conventional, stand-alone publication‑style document with a definitive document publication date, rather than a series of webpages, and publish electronically);
Better promote the Charter to ATO staff; and
Be a vehicle by which an independent assessment could be made of ATO performance (for example, the IGT, in determining complaints review findings, to report on whether the ATO actions were consistent with the Charter).
These improvements to the Charter could lead to better outcomes. It could assist ATO staff by providing more detailed guidance on how to deal with individual cases. The changes could also drive improvement by the Charter being used by the IGT in the review of cases as an independent measure of fairness performance.
On 20 November 2018, as this inquiry and report was being finalised, the ATO advised in a media alert that it had refreshed the Taxpayers’ Charter. Given the commentary in this review, the Committee took the opportunity to gauge the effectiveness of the new version with the inquiry as background.
In its review of the ATO’s 2016–17 Annual Report it was noted by the Committee that no mention was made of the Charter review process or plans. The ATO’s review and consultation register lists for the Taxpayers’ Charter Review , however, indicated that, at January 2018, the ATO had responded to the IGT’s review Recommendation 1(e) by conducting an ATO Open Consultation program ‘via Let’s Talk as well as through the ATO’s stewardship groups’ before making the revisions.
At the final hearings for this review in August 2018, the Committee investigated the ATO’s implementation of the IGT’s recommendations for a Charter review with ATO representatives. Second Commissioner, Law Design and Practice, Mr Andrew Millis detailed the stakeholders involved in the consultation process:
We have a range of stakeholder forums, including our national tax liaison group and forums specifically aimed at particular market segments—large business, small business, individuals, tax practitioners and so on. We socialised the document. First of all, we sought the reactions of and feedback from each of those forums as well as put it out to general consultation in the broader community.
The ATO’s Ms Jacqui Curtis, Chief Operating Officer, further advised:
We have consulted broadly with our stakeholders, both external and internal, and we have set about revising the charter. It is quite complex because we have to make sure any revisions keep up to date with, for example, our digital transformation. We also need to make sure that it meets all legislative requirements et cetera and, as the Inspector-General recommended, is consistent with the principles in the reinvention. We have completed that work and we are going release the new charter. We have a very strong communication and stakeholder engagement plan to go with that. We expect that to happen in December or maybe a bit before that, in line with the new corporate plan that we’ve just launched and our plans for the next few years, which are outlined in that corporate plan. It will be part of a launch of where we’re going in the next few years.
According to the ATO, the feedback from consultations had been positive with the existing Charter overall well received. Ms Curtis also advised that the ATO had taken on board the IGT’s recommendation that the Charter should be more broadly promoted to taxpayers.
The November 2018 iteration
As noted above, the Taxpayer’s Charter has been ‘refreshed’, as announced via a web media alert on 20 November 2018.
The media release launching the Charter listed the following improvements to the document:
Simplified information about what to expect if your business goes through a review and audit process;
More information about our digital interactions with you;
A move from complex language to make thing easier for you to understand;
A one-page overview of your rights and obligations.
The new Charter also has a summary element called ‘Essentials’ which outlines the 12 ‘rights’ of the taxpayer—or what taxpayers can expect from the ATO; and six ‘obligations’ or what the ATO expects of taxpayers.
The Committee noted that the Taxpayers’ rights section does not always relate to the taxpayer but rather expresses the expectations of the tax administrator; for example, where taxpayers are to be Honest and have Representation in the taxpayers’ rights section, and the ATO has obligations to Be truthful and Take reasonable care.
The 12 taxpayers’ rights listed in the November 2018 Charter are outlined in Table 5.1, and are contrasted with the ATO’s service commitment categories which are reported on annually. Those taxpayer rights which relate more to ATO expectations have been detailed, while the table is silent on those that do not. The final column shows how these rights could be rephrased to be from the taxpayers’ perspective.
Figure 5.1: Taxpayers’ Charter, November 2018—Rights relative to service commitment categories
Source: Committee analysis drawn from ‘ATO Taxpayers’ Charter—Essentials’, and links ‘What You Need to Know’, November 2018 <www.ato.gov.au/About-ATO/Commitments-and-reportingTaxpayers
--Charter/Taxpayers--Charter---essentials/ and Service Commitments> viewed 22 November 2018.
The Committee notes that following the updating of the Charter some of the taxpayers’ rights—for example rights categories 2, 4, 7, 9 and 12—continued to be phrased as if from the perspective of the ATO, rather than that of the taxpayer. For example, for right category 2 Honest—’we will treat you as being honest and give you an opportunity to explain any discrepancies’, the Committee noted that the self-assessment regime continues to place the onus of proof on the taxpayer, and as such, requires the taxpayer to prove their honesty. It is also notable that the Charter is silent on the honesty/integrity of the ATO. This continues to perpetuate the perception of imbalance of power that the original Charter was designed to reduce.
Similarly, with respect to right category 2, the insertion of the words ‘and give you the opportunity to explain any discrepancies’ would be better placed under right category 3 of Professional service and assistance.
The Committee also considered the six categories of taxpayer obligations—those referred to by the ATO as ‘what we expect of you’. These include:
The Committee believes some rephrasing of these obligations would be beneficial, and suggests these areas be particularly reviewed to achieve the following amendments:
Be truthful—the following words to be incorporated ‘we will treat you as being honest in the information you have provided’.
The Keep records category is not opaque—it states that a taxpayer must maintain records for five years but as has been previously discussed in this report, some circumstances call for records for an indefinite period. This is misleading and should not be written definitively.
Take reasonable care—the following words be considered to replace the existing wording regarding supplying correct information: ‘we expect you to be responsible for correct information given to the ATO via you directly, or used to calculate an item for tax assessment (or information given to a third party agent to determine your tax liability, even if the third party is representing you)’.
Other areas for improvement also noted relate to points previously raised by the Inspector-General of Taxation while others relate to subsequent commentary received in this review. Most of these comments address what the Committee regards as significant limitations in the accessibility of the information and deficiencies in professional formatting standards:
The Charter is still not a stand-alone downloadable document. It forms part of a bigger 189 page document covering various ATO commitments and reporting. The Charter of itself can’t be printed directly from the website in one efficient attempt or single document. It can only be extracted after downloading the composite 189 page PDF document which covers all the ATO commitments and reporting policies.
Similarly, there is no ability to print a single-standing publication format copy of ‘The Charter’. The alternative to PDF creation and extraction of the Charter’s current 44 page composition (but with various web-links, rather than information in appendices), is to follow every web link and print individual web pages, and then reconcile the collective pages and links. In this option the page numbers are not consecutive which hinders confidence in completeness.
The Essentials page doesn’t reference the seven affiliated documents to the Charter’s principles/rights and responsibilities. This is time consuming, documents printed don’t appear linked (no page numbers to ensure completeness) and the ensuing collection of information packages have no gravitas as a document of importance.
The Charter proper still comprises approximately 44 pages, so that even if the content was formed into a stand-alone publication it would still be a large document to refer to. It is therefore critical that the summary pages have pertinent information to guide taxpayers—but equally importantly, to remind ATO officers of the promise made.
The Essentials, a summation of rights and obligations, span four pages once printed, rather than the one referred to in the media release. This misrepresentation, which is highlighted in the media alert announcing the update, creates unnecessary confusion. The Committee acknowledges the IGT recommended in his review of the Charter that a one-page summary document be produced but the Committee notes that current size is reasonable and the bigger font size is welcomed.
The Committee also notes continuing uncertainty for taxpayers created by frequent online updates; the date of the Charter itself and previous versions—and considers that certainty on the website in terms of the currency of advice and access to it once updated is critical. In the Committee’s view, many of the preceding points of improvement could be rectified with a stand-alone, standard publication format of the Taxpayers’ Charter with appendices relating to the adjunct explanatory material.
On the positive, the Committee is pleased to see improved visibility of the role of the IGT regarding complaints handling assistance, as highlighted on the ATO’s website and in the Charter. This responds to IGT recommendations referred to above by the ATO, and to comments in the Inspector’s 2016‑17 Annual Report which noted both the need to improve IGT visibility to taxpayers along with the poor accessibility of key information for stakeholders on the ATO website.
In this regard, the Committee also took ATO advice from Chief Operating Officer Ms Curtis at hearings that the ATO has launched a ‘re-labelled’ banner on its website to direct stakeholders to its revitalised Taxpayers’ Charter. At the same time, she highlighted the ATO’s internal work in promulgating Charter messages to staff:
Before it was just about rights and obligations, but we’ve made the charter a lot more prominent. We already had some training in place for staff but now we have improved it, which was another recommendation, and we’ve embedded it in the induction program. We have training that refers to the charter throughout the course of the staff or employee life cycle. As well as all that, we’ve reviewed all of our scripts and policies—for example, in the call centres—to make sure that staff are constantly aware of the charter. It’s bringing it to life so it’s not just a document but a lived behaviour from our staff. That’s what we think the difference will be. Some of that’s already in place, but when the charter is, as I said, relaunched and reshaped it will be even more explicit.
The Committee acknowledges the ATO’s pro-activeness in undertaking its recent high level overview of the Charter essentials (rights and obligations), which really is the Charter proper—including the written commitments of ethical behaviour for all parties engaging in the tax system.
The Committee is of the view that the recent changes to the Charter are a step in the right direction; however, they do not fully address the Committee’s concerns about some aspects the Charter as an internally and externally important document. As discussed in this chapter:
The Charter is not a single document with an ATO publication number and appropriate version control consistent with other ATO guidance publications;
It is not integrated with the CCM nor the Reinvention program risk engagement approach; and
It is balanced too far in terms of taxpayer obligations rather than ATO behaviours.
In addition, it appears the important recommendations made by the IGT on the Charter remain at least partly outstanding and the Committee urges the ATO to meet its measurement commitments.
As discussed in Chapter 2 regarding the ATO’s progress on the Reinvention Program, an improved Charter should incorporate any higher level values which the ATO’s ‘reinvention’ creates. The Charter itself could also convey the ethos of the ATO’s Reinvention Program by articulating the current actual regulatory philosophy employed by the ATO; which is not yet formally identified as such. It was noted, for example, that most of the additional material comprises guidance documents for taxpayers in particular situations.
The Committee heard in this review that a high level value document which expounds the ethos of the ATO to both staff and taxpayers—in practical, measurable terms and in a consistent and stable format—will be vital if taxpayer confidence in the ATO is to be promoted.
However, it appears to the Committee that at present there are two philosophical frameworks being used to guide tax officers in their roles as administrators of voluntary compliance—the CCM and the Program Blueprint summary’s ‘tailored engagement based on risk’ approach.
The CCM revolves around enforcement according to level of compliance and intent while the tailored engagement approach focusses engagement and enforcement on level of risk to detriment the tax system which confers minimal, low, medium and high ‘touch’ or enforcement strategies. At the same time, the underpinning need to promote fairness and trust in the system has been undermined by a poor calibration of these two performance approaches.
The focus on taxpayer obligations could be partly offset by improvements to the written document and in part by changes to processes in how the Charter is used. Use of the Charter in external transparent reviews will drive improvements, with the IGT to assess whether the ATO, and taxpayers in dispute, have acted in accordance with the Charter in the cases reviewed by the IGT. The IGT could publish its findings on individual cases, or if this is not possible due to privacy concerns, the IGT could publish aggregate data annually.
A consistent theme of cases reported to this Committee, as discussed in preceding chapters, was whether the ATO exploited its powerful position against individual taxpayers. The improved Charter is a critical tool to address these concerns on the appropriate use of the ATO’s broad powers including, and as discussed in Chapter 4, its obligations under Model Litigant legislation.
The Committee recognises the considerable challenges the ATO faces in maintaining high levels of honourable engagement in a self-assessment regime conducted by digital means. This increasingly impersonal framework, coupled with innovative means to disengage, has the potential to strain confidence in the tax system as a whole.
It is therefore paramount, in the Committee’s view, that the ATO speaks to taxpayers’ principles and ethical behaviour and engage them as partners in civic responsibility. The success of the system can’t be merely based on the fact that non-compliant behaviour will be eventually detected via digital methods. Operation Elbrus demonstrates that deliberate and complex non‑compliant behaviour will be detected; but that considerable and irreparable damage both in terms of system integrity and confidence, and huge financial impacts, can occur beforehand.
The Committee believes that to maintain the high level of confidence in Australia’s tax system which is currently enjoyed—the Taxpayers’ Charter needs further review and should be re-framed to reflect not only the obligations and rights of Taxpayers, but also the service commitments and ethics of the ATO in what is now very much a joint undertaking. The ATO and taxpayers now have increased risks and obligations in a time of fast‑paced communication and technological and social evolution, and the Charter should reflect that changed dynamic.
The Committee recommends the ATO adopt a reframed ‘Australian Taxation Office Charter’ which not only provides that taxpayers be fair, honest and timely in engagement with the ATO and the tax system but also sets equivalently high service obligations for ATO staff and policy makers in tax administration.
As suggested in Recommendation 5 of this report, the Charter should also acknowledge the new relationship between taxpayers and the ATO, and the mutual obligations that have emerged, under the digital reinvention of the ATO.
The Committee recommends that the ATO’s Charter should articulate a clear regulatory philosophy which underpins the values set out above, in addition to advice on the ATO’s interpretation of and enforcement of taxation law.
This regulatory approach should reflect the existing Cooperative Compliance Model (CCM) compliance and enforcement dynamic; and elements of the Reinvention program blueprint taxpayer risk model.
Additionally, the reporting period brought into sharp focus the ATO’s internal controls for fraud management and the heightened importance of system vigilance before actual breaches occur. This is critical to maintain confidence in the ATO’s now largely digital interaction systems.
The ATO has a different corporate environment post the digital age. The last ten years has seen a period of generational change in staff structure—significant staff reductions, retirement of career public servants, and with the cessation of entry to APS defined benefits superannuation schemes, more staff movement is likely to occur in and out of the private sector. This has brought significant expertise to support the changing global tax environment but also significant threats in terms of conflicts of interest, understanding protocols and the sharing of ‘inside information’ with the corporate or practitioner sector.
The Committee notes that the IGT’s report on Fraud Control Management devotes a chapter to conflicts of interests and internal controls. The Committee considers these are key matters which impact taxpayers’ confidence in the tax administrator and that the protection from these occurrences is the ATO’s responsibility. This should therefore be explicit in it in the ATO’s service Charter.
The Committee recommends that the Charter include a pledge to provide taxpayers with robust internal controls to:
ameliorate the impacts of conflicts of interest on the Australian tax system and on specific taxpayers;
ensure ATO structures and processes provide early detection and interception of any fraudulent behaviour or system breaches; and
prevent impairing independent decision making, particularly at review or appeals stages.