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Practice Direction Review of Taxation and Commercial Decisions
Practice Direction Review of Taxation and Commercial Decisions
Interpretation
1.5 In this Direction:
decision-maker means:
(a) the agency or other entity that made the decision under review and any
representative; or
(b) if another agency or entity is a party and is the contradictor in the review – that
agency or other entity and any representative;
1
The applications that are allocated to the Taxation and Commercial Division are set out in the
Allocation of Business to Divisions of the AAT President’s Direction.
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2. General principles
2.1 In general, an AAT member will be allocated to manage each case from lodgement to
resolution (the Managing Member), assisted by the AAT’s Conference Registrars
who will usually conduct any alternative dispute resolution (ADR) processes.
2.2 In carrying out our functions, we must pursue the objective of providing a mechanism
of review that:
(a) is accessible;
(b) is fair, just, economical, informal and quick;
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the AAT.2
2.3 You and the decision-maker must use your best endeavours to assist us to fulfil this
objective.3 The decision-maker must also use its best endeavours to assist us to
make our decision in relation to the application.4
2.4 We expect you and the decision-maker to cooperate with us and with each other to:
(a) identify the real issues in dispute early; and
(b) deal with those issues efficiently and effectively.
We expect you and the decision-maker to think about the best way to run the case
and to engage in a dialogue with us to achieve our statutory objective. These
expectations apply regardless of the nature or complexity of the matter.
3. Initial procedures
3.1 Shortly after an application is lodged, we will allocate it to a Managing Member. In
general, the Managing Member will manage the application and, if the application
proceeds to hearing, preside at the hearing.
3.2 In most cases, the first case event will be a case management directions hearing
conducted by the Managing Member. However, some applications may be referred to
the conference process and managed initially by an AAT Conference Registrar.
2
Section 2A of the AAT Act.
3
Subsection 33(1AB) of the AAT Act.
4
Subsection 33(1AA) of the AAT Act.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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3.3 We will send you and the decision-maker a listing notice setting out the date, time and
location of the first case event.
3.4 The decision-maker must, within 28 days after receiving notice of an application,
lodge with the AAT and give to you and any other party the documents required under
subsection 37(1) of the AAT Act. These documents are referred to as the ‘Section 37
documents’. We have the power to shorten or extend the 28 day period if an
application is made to us.5 For more information about the requirements relating to
the Section 37 documents, see the Lodgement of Documents under Sections 37 and
38AA of the AAT Act Practice Direction.
3.5 If you believe your application needs to be dealt with urgently, you can request an
expedited review in accordance with the procedure set out in our General Practice
Direction. We will actively facilitate the expedited review of a decision if we are
satisfied it requires an urgent determination.
5
See subsections 37(1) and (1A) of the AAT Act.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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(ii) if any experts are to give evidence, whether the evidence will be given
other than by way of the concurrent evidence procedure.6
(f) making directions about lodging with us and giving to the other party evidence
and Statements of Issues, Facts and Contentions; and
(g) the scheduling of hearing dates.
4.5 We expect you and the decision-maker to communicate with each other in a
meaningful way about matters to be raised at the case management directions
hearing before it takes place, with a view to agreeing about directions in advance of
the hearing. If you are representing yourself, we expect the decision-maker to take
the initiative in this communication. If agreement can be reached about appropriate
directions, you and the decision-maker may ask that the Managing Member make the
directions by agreement.
4.6 For the assistance of parties, a template for directions that may be made at the case
management directions hearing is at Attachment A. A template of a Statement of
Issues, Facts and Contentions is at Attachment B.
Conferences
5.5 If your application is referred to a conference, we will usually hold the first conference
within 6 to 10 weeks after your application has been lodged. The conference may be
held in person or by telephone. A further conference may be held if necessary.
5.6 The purpose of the conference process is to:
(a) identify and narrow the issues in dispute;
(b) identify further evidence that may be gathered;
(c) discuss this evidence when it has been received, as well as the merits of the
case;
(d) explore whether an agreed outcome can be reached; and
(e) discuss the future conduct of the application.
6
See our Use of Concurrent Evidence in the AAT Guideline.
7
Subsection 34A(3) of the AAT Act.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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5.7 Conferences are conducted by AAT Conference Registrars who may make directions
during the conference process.
Conciliation or Mediation
5.8 A conciliation or mediation will usually be included in the directions made by a
Managing Member.
5.9 A person with authority to make decisions on proposed settlement options must
attend the conciliation or mediation, or be contactable by telephone.
5.10 At least 3 working days before a conciliation or mediation, you and the decision-
maker must:
(a) give the AAT and each other a list of the people who will attend the ADR process;
(b) give a Confidential Issues Statement to the AAT only.
5.11 The Confidential Issues Statements will be viewed only by the Conciliator or Mediator
for the purpose of the conciliation or mediation and will not be provided to the other
party. It should contain:
(c) a list of outcomes, from best to worst, if the application is not settled;
(d) an assessment of the legal, commercial, business and reputation risks of
continuing litigation;
(e) what offers of settlement have been made, if any;
(f) costs incurred to date;
(g) for taxation applications, the amount in dispute, including the primary tax,
penalties and general interest charge, as well as the amounts that have been paid
and the amounts that are outstanding; and
(h) in the event the application proceeds to hearing, how long you estimate the
hearing may take and a proposed list of witnesses.
5.12 The Confidential Issues Statement should be no more than 3 pages.
5.13 For the assistance of parties, a template of a Confidential Issues Statement is at
Attachment C.
5.14 Conciliations and mediations are generally conducted by AAT Conference Registrars
who may make case management directions at the conclusion of the ADR process if
agreement has not been reached.
6. Other matters
Additional directions hearings
6.1 A directions hearing may be listed at any time if required, including if you or the
decision-maker has not complied with this Direction or with a specific direction made
by the AAT. Either you or the decision-maker may make a request for a directions
hearing. The request must be:
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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(a) in writing;
(b) given to the other party; and
(c) set out what orders or directions are sought and the basis on which they are
sought.
6.2 The Managing Member will usually hold any directions hearing.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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ATTACHMENT A
EXAMPLE DIRECTIONS
[name of applicant]
Applicant
[name of respondent]
Respondent
Date:
[Multiple applications]
… This application and application(s) with file number(s) [file numbers] be heard
together and that evidence in one application be evidence in all applications.
… All documents that are lodged in the applications are to be lodged for inclusion on the
file with file number 20____/______.
[Section 37 documents]
… The Respondent must lodge with the Tribunal and give to the Applicant any further
Section 37 documents by [date].
[Evidence and Statement of Issues, Facts and Contentions]
… The Applicant must lodge with the Tribunal and give to the Respondent:
(a) any witness statements8 and other evidence on which the Applicant intends to
rely at the hearing; and
8
A witness statement is a written statement setting out all of the evidence intended to be given by a
witness on which you propose to rely. It will operate as the only evidence of that witness unless the
Tribunal allows additional evidence to be given by that witness.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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… The Applicant must lodge with the Tribunal and give to the Respondent:
(a) any outlines of evidence9 and other evidence on which the Applicant intends to
rely at the hearing; and
(b) a Statement of Issues, Facts and Contentions;
by [date].
… The Respondent must lodge with the Tribunal and give to the Applicant:
(a) any witness statements and other evidence on which the Respondent intends to
rely at the hearing; and
(b) a Statement of Issues, Facts and Contentions;
… No later than 10 working days prior to the start of the hearing, each party must lodge
with the Tribunal and give to the other party a list of witnesses intended to be called at
the hearing.
At the first case management directions hearing, the Managing Member will discuss with the
parties the case management strategy that will be most effective to achieve early resolution
of the application by way of agreement between the parties or by the AAT making a decision.
The AAT expects parties to communicate with each other in a meaningful way about matters
to be raised at the case management directions hearing before it takes place, with a view to
agreeing about directions in advance of the hearing.
9
An outline of evidence is a document that sets out the evidence that it is anticipated a witness will
give orally at the hearing. The Tribunal expects that the evidence of the witness will not go beyond
what is set out in the outline unless the Tribunal allows additional evidence to be given by that witness.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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If the Applicant is self-represented, we expect the decision-maker to take the initiative in this
communication. If agreement can be reached about appropriate directions, the parties may
ask that the Managing Member make the directions by agreement.
The directions included in this template are intended to guide parties only, and are not
complete or exhaustive. Parties should amend the template as required.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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ATTACHMENT B
[name of applicant]
Applicant
[name of respondent]
Respondent
Issues
[Applicant/Respondent] considers that the issues for the Tribunal to determine are as follows:
1. [Explain what the problem is with the decision: what questions do you want the
Tribunal to answer? For example, is the deduction properly allowed under the Income
Tax Assessment Act? Was the penalty correctly imposed?]
2.
Facts
The following are the relevant facts as the [Applicant/Respondent] perceives them:
1. [Briefly explain what happened. Do not include opinions. Do not include evidence,
but footnote Section 37 documents, statements or other documents if relevant]
2.
Contentions
[Applicant/Respondent] contends as follows:
1. [Explain the conclusions you want the Tribunal to make and why these conclusions
should be made].
2.
Decision sought
3. [Applicant/Respondent] seeks an order [affirming] / [varying] / [setting aside] /
[remitting] / [other] the decision.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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These instructions do not form part of the Statement and MUST BE DELETED before
the Statement is lodged with the AAT
The purpose of a Statement of Issues, Facts and Contentions is to inform the AAT and the
parties of each other party’s case so that, when read together, they should present a clear
picture of the issues in dispute and the respective positions of the parties.
A Statement of Issues, Facts and Contentions must set out:
A party may amend a Statement of Issues, Facts and Contentions provided adequate notice
is given of any proposed change.
In a taxation application, the AAT generally expects that an Applicant who is represented will
lodge with the Tribunal and give the Respondent a Statement of Issues, Facts and
Contentions first, followed by the Commissioner of Taxation. However where an Applicant is
self-represented, that process will generally be varied such that the Commissioner of
Taxation lodges a Statement of Issues, Facts and Contentions first.
In an application for review of a decision by a regulatory body, the AAT expects that the
regulatory body will usually lodge with the Tribunal and give the Applicant a Statement of
Issues, Facts and Contentions first, followed by the Applicant.
It should be possible to identify the evidence required to be presented at the hearing from the
factual issues remaining in dispute between the parties.
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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ATTACHMENT C
[name of applicant]
Applicant
[name of respondent]
Respondent
[Explain what the problem is with the original decision: what questions do you want the
Tribunal to answer? For example, is the deduction properly allowed under the Income
Tax Assessment Act?]
What do you want to achieve from the ADR process?
[Explain what you want to negotiate through this ADR process. For example, a payment
plan; a conditional licence]
What is the best to worst outcome if you don’t settle?
[Explain what will happen if you win at a hearing. Explain what will happen if you lose]
What are the risks of not settling?
[Explain what the legal, commercial, business and reputation risks are for you if you don’t
settle but continue on to a hearing]
What offers of settlement have been made?
[Explain what offers and counter-offers have been made to settle this matter, if any]
How much has this application cost?
[Explain how much money you have spent so far on this application. For example, the
costs for lawyers or accountants and lost wages]
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
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[Insert the names of the people you want to give evidence to support your application and
what their relationship is to you]
For further information about the AAT, please call us on 1800 228 333 or go to www.aat.gov.au.
Administrative Appeals Tribunal / Practice Direction / Review of Taxation and Commercial Decisions