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Accountants’ privilege, access powers, and the Stewart and Denlay decisions


Access guidelines issued by the Australian Taxation Office (ATO) limit the power of the ATO to have access to working papers consisting of advices prepared by external accountants about taxpayers' taxation affairs. That part of the access guidelines is known as "the accountants' concession". Two recent decisions of the Federal Court in the Stewart and Denlay matters have brought the concession into focus.

This article examines those decisions in detail, and relates them to two current reviews into the nature and scope of the concession and the exercise of access powers. In the author's view, the Stewart decision makes it clear that any material noncompliance by the ATO with the procedures stipulated in the accountants' concession is subject to judicial review, and it is therefore arguable that legislation is not necessary. Nevertheless, it is argued that the access guidelines need to be revised and, in particular, should be expanded to deal with documents in the possession of third parties.

Author profile

Christopher Branson
Chris was admitted as Solicitor NSW September 1967 and admitted as Barrister NSW in August 1975. He was then appointed Queen’s Counsel and QC in all states and territories. Chris has practised as an advocate in NSW, ACT, WA and NT since 1975 and is currently the Deputy Chairman of the Law Council of Australia Taxation Subcommittee and is a Member of the Board of Taxation Advisory Panel. - Current at 01 February 2012
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