Question

discuss the ATO's 'test case litigation program'

Answer 1

Answer :

The Test Case Litigation Program provides financial assistance to taxpayers to help them meet some, or all, of the reasonable litigation costs for ATO-law related cases that meet specific funding criteria and expectations.

Criteria : For a case to be approved for funding, the case must:

• involve issues where there is uncertainty or contention about how the law operates
• be in the public interest to be litigated.

Uncertainty or contention about how the law operates means that the law is ambiguous with little or no judicial clarification on the issue, or there is disagreement on what the law means or how it operates. It does not include disputes that depend solely on questions of fact.

Expectations : In addition to meeting the funding criteria, the case must have either:

• significance to a substantial section of the public
• significant commercial implications for an industry.

This means there should be a number of taxpayers affected, or there are industry or community views that the issue is uncertain or contentious.

• You must demonstrate willingness to progress the dispute in a timely manner by cooperating with us to avoid delays. Any indication that this may not occur (based on past or current behavior) will be considered before an application is approved.
• Your case must be likely to provide legal precedent as a principle of law, capable of being used to decide other cases with similar facts, giving certainty and clarity for taxpayers.
• Your case must not involve a tax avoidance scheme unless it tests the proper meaning within the legal framework of the anti-avoidance provisions.
• Your case must not appear to be an attempt to gain a windfall or an outcome contrary to the intent of the legislation and public policy.

How to apply

If you believe you meet funding criteria and expectations, you can apply for test case funding using the test case funding application form. Applications are considered by a panel consisting of three external experts and two senior ATO executives. Details of when the panel will next meet are on the test case litigation register. You can also find examples of currently funded cases and test case funded decisions on the register.