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The Federal Court (Perram J) has held that the ATO was entitled to access confidential accounting advices prepared for Messrs Stewart, Hogan and Cornell to assist in the ATO audit of their tax affairs.

The Court held firstly that Mr Cornell and Mr Stewart had not been denied procedural fairness by the Commissioner in relation to the Commissioner's decision to seek access to the accounting advices that comprised restricted source and non-source documents (as described in the Commissioner's "Guidelines to Accessing Professional Accounting Advisors’ Papers", aka the Accountants' Concession) on the grounds that exceptional circumstances existed. The exceptional circumstances were that there was a scheme or arrangement for the purposes of Part IVA of ITAA 1936 and that there were reasonable grounds to believe that fraud or evasion had taken place.

In relation to Mr Hogan, the Court held that the guidelines did not apply to the documents in question, as those documents were not in the possession of either Mr Hogan or his advisers (as required by the guidelines) but in the possession of a third party, namely, the Australian Crime Commission. Consequently there was no procedural unfairness in the Commissioner's access of those documents.

Stewart v FCT [2011] FCA 336 (Federal Court, Perram J, 8 April 2011).


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