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Chapter 6—Cross-border information exchanges

6.1 It is broadly recognised that cross-border exchange of information (EOI) is vital for enhancing global tax transparency and cooperation in the interest of maintaining the overall integrity of the tax system:

International banking has become commonplace and it is no longer extraordinary for taxpayers to reside in one country, hold assets in another and have them managed from a third location. … But regardless of why taxpayers situate their assets beyond the boundaries of their own residence country, the result is that tax administrations around the world face more and greater challenges to the proper enforcement of their tax laws than ever before. To meet these challenges, tax authorities must increasingly rely on international co-operation based on the implementation of international standards of transparency and effective exchange of information.447

6.2 Australia maintains a network of international tax treaties, tax conventions and tax information exchange agreements (TIEAs) with over 100 jurisdictions worldwide.448 This work involves sharing data, intelligence and joint compliance action and is aimed at, amongst other things, combating profit shifting and cross-border tax avoidance. Such agreements may be bilateral agreements between two countries or multilateral conventions to which several countries may be party. Generally, bilateral agreements under which tax information may be exchanged are based on models developed by the OECD. Of particular note is the Model Tax Convention on Income and on Capital (MTCIC),449 where article 26 provides for EOI, as well as the Model Agreement on Exchange of Information on Tax Matters (MAEITM).450

6.3 The above agreements canvass a range of different types of EOI, namely: specific, spontaneous and automatic.451 Specific EOI (also known as EOI on request) is the most common type of exchange and involves one treaty partner making a request, or responding to a request from, another treaty partner.452

6.4 Spontaneous EOI involves the provision of information that has not been specifically requested but was uncovered during an investigation and which may be of interest to another treaty partner. There is no obligation for treaty partners to act upon these spontaneous exchanges. It is intended to assist in building positive international relations with other tax authorities and help combat international tax avoidance.453

6.5 Automatic EOI involves the automatic exchange of data on various types of investment income such as interest, dividend and trust distributions. When such information is received by the ATO, it is uploaded onto the ATO’s systems and used for data matching compliance activities.454

6.6 During the 2014-15 financial year, the ATO has reported that it took part in a total of 514 EOIs — this includes all three types of EOI. Of these, 281 were outgoing exchanges in which the ATO provided information to other revenue authorities, whilst 233 were incoming exchanges where the ATO received information from other revenue authorities.455 These EOIs resulted in total tax liabilities being raised by the ATO in the vicinity of $255 million over the same period.456

6.7 In addition to Australia’s various tax treaties and tax agreements, there is a range of other international tax transparency measures and initiatives which may also facilitate information exchange, including the OECD Common Reporting Standard (CRS)457, the Australia and USA inter-governmental agreement to implement the Foreign Account Tax Compliance Act (FATCA)458 and the Joint International Tax Shelter Information Centre (JITSIC) network.459 These measures reflect the increasing commitment by the Australian Government and the ATO to exchange information with other jurisdictions to combat tax avoidance. For example, the CRS and FATCA form part of the new international standard for identifying instances of undeclared offshore income through the automatic exchange of tax information.

Country-by-Country reporting

6.8 A more recent development in cross-border information exchange is country-by-country (CbC) reporting. CbC reporting is contemplated within Action 13 of the OECD’s 2013 Action Plan on Base Erosion and Profit Shifting.460 In October 2015, the OECD released its final report on Action 13461 which concluded that a ‘standardised approach’ to transfer pricing documentation is required such that revenue authorities will have ‘relevant and reliable information to perform an efficient and robust transfer pricing risk assessment analysis’.462 Under this approach, multinational enterprises would be required to provide three tiers of transfer pricing documentation:

  1. a master file containing standardised information relevant for all MNE group members;
  2. a local file referring specifically to material transactions of the local taxpayer; and
  3. a Country-by-Country Report containing certain information relating to the global allocation of the MNE’s income and taxes paid together with certain indicators of the location of economic activity within the MNE group.463

6.9 The exchange of CbC reports between revenue authorities occurs automatically.464

6.10 Domestically, Australia has begun implementing CbC reporting through enacting subdivision 815-E465 of the Income Tax Assessment Act 1997 which requires a ‘significant global entity’ to provide transfer pricing documentation, including the CbC reports, within 12 months after the end of the period to which it relates.466 To assist taxpayers with the new CbC reporting requirements, the ATO has also issued Law Companion Guide LCG 2015/3.467

6.11 The implementation of CbC reporting is still in its infancy and the ATO is still bedding down its processes in line with guidance from the OECD and in consultation with relevant stakeholders. Should issues or concerns arise in the future in relation to the ATO’s implementation or administration of CbC reporting, the IGT may seek to examine the relevant issues in a more targeted review. It should be noted that the IGT more generally reviewed the ATO’s management of transfer pricing relatively recently.468

Stakeholder concerns

6.12 Stakeholders acknowledge the key role that information exchange plays, both domestically and across borders, in the ATO’s effective administration of the tax system. However, they have raised some concerns in relation to the processes adopted by the ATO in this regard.

6.13 Firstly, stakeholders consider that there is a lack of clarity on the circumstances in which the ATO may engage in EOI processes with other jurisdictions. In particular, they would like to know the levels of authorisation required to ensure that ATO officers have exhausted all other options of obtaining the required information before resorting to EOI. They would also like to be assured EOI is appropriately used. Anecdotally, some stakeholders have expressed concerns that, at times, the ATO has sought information which is arguably beyond the parameters of the relevant international treaties or agreements.

6.14 Secondly, stakeholders have queried how the ATO assures itself that information received under an EOI is used only for the purposes for which it was sought and not any other ancillary actions. Similarly, stakeholders wish to be informed of mechanisms by which the ATO assures itself that the information it provides to other jurisdictions would not be used for a collateral or improper purpose.

6.15 Thirdly, stakeholders have raised concerns that the current EOI processes between Australia and its treaty partners do not explicitly include requirements for the relevant taxpayer or their representatives to be informed. Such notification may facilitate earlier engagement, may provide alternative domestic sources for the required information or limit the scope of the EOI. They are also of the view that being informed about EOI should be a fundamental procedural right of all taxpayers. In their view, where taxpayers are unaware that information has been exchanged, there is no opportunity for them to consider the information, correct any identified inaccuracies or properly contextualise the information before it is applied in the tax assessment process.

6.16 In addition to the above concerns, it has also been noted that where taxpayers are not notified of an EOI request, they are unable to challenge its scope or validity. An example of such a case was brought to the IGT’s attention. In that case, Australia issued an EOI request to Jersey which was served to a lawyer requesting disclosure of certain information in relation to a taxpayer. At the same time, the notice precluded the lawyer from disclosing or discussing the notice with anyone connected to the taxpayer as the investigation concerned instances of suspected fraud.469 Whilst the Court ultimately acknowledged the need for secrecy in some respects, it also observed the broad scope of the prohibition of disclosure which it considered could not validly stand.470 In its view, an absurd circumstance had resulted where the person who was served with the notice was arguably even precluded from notifying himself471 and effectively prevented the taxpayer from challenging the disputed notice.472

6.17 Whilst the above case is not indicative of all EOIs, it highlights some of the concerns raised by stakeholders.

Relevant materials

Scope and use of the information

6.18 Australia’s tax treaties stipulate that the authority to exchange information between revenue authorities rests with each jurisdiction’s competent authority (CA). Australia’s CA is the Commissioner or his authorised representative. For practical purposes, this role is generally delegated to Assistant Commissioners and EL2 staff with international responsibilities.473 The EOI Unit within the PGI BSL assists the CA or his representatives, being responsible for receiving, assessing and managing incoming and outgoing cross-border information exchange requests.474

6.19 The ATO has advised that BSL officers (requesting officers), who wish to make an EOI request, are required to satisfy the EOI Unit and the CA that all alternative avenues of accessing the information have been pursued before an EOI request is made.475 The only exception to the above requirement is where obtaining the information through domestic channels is ‘disproportionately difficult’,476 in which case it would be assessed by the CA on a case-by-case basis.

6.20 When making a request for an EOI, the requesting officer prepares an EOI template that is specific to the jurisdiction from which the information is being sought. A separate EOI template is required for each jurisdiction as these templates are designed to ensure that the request for information complies with the relevant tax treaty or agreement that Australia has with that jurisdiction.477 The requesting officer works with the BSL Gatekeeper, who acts as liaison between the BSLs and EOI Unit,478 in finalising the EOI template to ensure that it is in accordance with the EOI Unit’s requirements. The EOI request is provided to the CA for approval before being sent to the overseas jurisdiction. A diagram of the ATO’s processes for requesting and responding to an EOI is provided in Appendix 4.

6.21 There is also some guidance that has been issued specifically in relation to information exchange in the context of indirect tax, in particular GST. This guidance largely reinforces the process described above.479

6.22 The ATO has advised that there is currently no public information which sets out the above processes through which EOI requests and responses are managed and the roles of the various ATO officers within the processes.

6.23 In respect of the appropriate use of information which has been received by the ATO, some guidance is available under Article 8 of the OECD’s MAEITM:

Any information received by a Contracting Party under this Agreement shall be treated as confidential and may be disclosed only to persons or authorities (including courts and administrative bodies) in the jurisdiction of the Contracting Party concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. The information may not be disclosed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority of the requested Party.480

6.24 Article 26 of the MTCIC provides a similar provision in respect of appropriate information use.481

6.25 In giving effect to the confidentiality and secrecy requirements of information that has been obtained through an EOI, the EOI Unit attaches a cover sheet to all information received from the relevant treaty partner before forwarding that information on to the requesting area.482 This cover sheet includes a prominent alert to staff that the information has been obtained under a treaty and, accordingly, the use and handling of the information is subject to limitations. Notably, ATO staff are not to pass or copy information without prior consent from the EOI Unit. Where the information is scanned and archived on the ATO’s systems, it is done with the cover sheet attached.

6.26 In certain circumstances, the scope of information that is provided to a treaty partner may be expanded beyond the initial request. The ATO is able to provide additional information which has not been specifically requested by the counterpart CA even where a new request has not been received. This information may be provided by the ATO as long as it satisfies the requirements of the relevant treaty or agreement under which information was initially sought.483 Alternatively, the information may be provided to other jurisdictions as a spontaneous EOI.484

6.27 The ATO has also adopted practical steps to minimise the risk of inappropriate use, such as providing training to the BSL through making a range of learning modules available. Furthermore, the ATO’s internal fraud prevention and control section is tasked with detecting instances of unauthorised access. Such unauthorised accesses are investigated and sanctions may be imposed such as jail terms of up to two years.485

Safeguarding taxpayer information

6.28 As part of Australia’s tax treaty negotiation process, which is conducted by the Treasury on behalf of the Commonwealth,486 it must satisfy itself, amongst other things, that partner jurisdictions will be able to maintain the privacy, secrecy and confidentiality of the information exchanged with them.487 Such assurances may be provided in a number of ways, including by the revenue authorities exchanging detailed processes to allow each other to assess the appropriateness of the safeguards or delegates being sent to inspect safeguarding mechanisms to gain a better appreciation.488

6.29 The ATO does not generally publicise the details of such negotiations as they may contain information which is sensitive to the protection of the data itself and publication may inadvertently reveal areas which may be exploited.

6.30 In addition to the above, the parties may rely on international checks and assurance processes. For example, the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes (OECD Global Forum) has established a two-phase peer review assessment process for the verification of security processes of member jurisdictions. Phase 1 examines the legal and regulatory framework and is conducted by way of a questionnaire.489 Phase 2 examines the implementation of this framework in practice490 and may require an onsite visit by the OECD assessment team.491 Member jurisdictions are also required to detail mechanisms for monitoring, detecting and reporting breaches as part of the peer review process.492

6.31 Of the 46 jurisdictions493 with which Australia has a tax treaty, the majority have been assessed by the OECD Global Forum to be currently compliant or largely compliant with both Phase 1 and Phase 2. Two jurisdictions, Indonesia and Turkey have undergone Phase 2 assessment and have been assessed to be partially compliant whilst Romania and Switzerland have completed Phase 1 assessment and are deemed ready for Phase 2 assessment. Five other jurisdictions – Fiji, Kiribati, Papua New Guinea, Sri Lanka and Vietnam – have not yet been assessed by the OECD Global Forum.494

6.32 Of Australia’s 35 TIEA partner jurisdictions,495 six remain at the Phase 1 assessment stage with three – Guatemala, Liberia and Vanuatu – deemed not yet ready to proceed to a Phase 2 assessment.496 It should be noted that TIEA partner jurisdictions generally only provide information to, rather than receive information from, Australia under the relevant agreement.

6.33 In respect of Australia, the OECD found it to be compliant at both Phase 1 and Phase 2, observing that:

Each of the DTAs and TIEAs concluded by Australia meet the standards for confidentiality including the limitations on disclosure of information received, and use of the information exchanged, which are reflected in Article 26(2) of the OECD Model Double Taxation Convention and Article 8 of the OECD Model TIEA respectively These confidentiality requirements are supported by confidentiality provisions in Australian domestic law which include significant sanctions for any breach of confidentiality. Further, in respect of the DTAs, the confidentiality articles in those agreements form part of Australian domestic law as the agreements are scheduled to the ITAA 1953. Finally, there are additional secrecy obligations imposed on public servants in respect of information obtained in the course of employment duties pursuant to the Public Service Act 1999.497

6.34 The OECD also outlines the ATO’s application of the ‘need to know’ criteria for access to information, stating that information is received only through appropriately authorised officers and delegates of the EOI Unit, the Transfer Pricing Practice or the few delegate members of the JITSIC network.498

6.35 In relation to information provided to revenue agencies of other jurisdictions under an EOI, the ATO has implemented processes whereby taxpayers may raise concerns about breaches of their privacy by these other jurisdictions.499 In the first instance, a taxpayer may lodge a complaint with the ATO Complaints Unit. If the taxpayer is dissatisfied with the ATO’s response to the complaint, they may escalate the matter to the Privacy Commissioner for consideration and a determination as to the breach. The Privacy Commissioner may recommend remedial action to the ATO or for payment of compensation. The Privacy Commissioner’s determination is reviewable in the AAT.500 The AAT’s decision may be appealed to the Federal Court of Australia on questions of law.501

6.36 Where taxpayers are concerned that there has been a breach of the secrecy and confidentiality requirements, the taxpayer may also approach the ATO’s Complaints Unit. Where it is found that the information has been mishandled or misused, sanctions may be imposed against the officer or officers involved.502 Remedies that may be provided to the taxpayer include compensatory payments or apologies. If the complaint relates to suspicion of misuse of information held offshore, the ATO may also initiate processes to make enquiries of their treaty partners regarding the relevant access.

6.37 The ATO has advised that taxpayers may also approach the ATO on privacy and confidentiality concerns through a number of other channels which are specific to the information exchange. For example, the ATO’s webpage on the CRS provides a dedicated email address for taxpayers to raise questions or concerns. Where the relevant team is unable to address those concerns, it is referred to the relevant area of the ATO for action.

6.38 It is worthwhile noting that there have been some recent positive developments in relation to the safeguarding of taxpayer information under an EOI. An example of this is found in the revised Australia-Germany DTA503 which seeks to set out clear parameters on the liability of the receiving country where taxpayers suffer unlawful damage as a result of the EOI.504 The same DTA also requires the supplying country to ‘exercise vigilance’ as to the accuracy of the information supplied as well as ensuring that the information is foreseeably relevant and proportional to the purpose for which it is supplied.505 Furthermore, it states that on request, the receiving country notifies the supplying country about the use of the supplied information and the results achieved.506

Notification and correction of information

6.39 In some jurisdictions, domestic law or procedures may require that notification of an EOI be given to the taxpayer that is the subject of the request.507 There is currently no domestic law in Australia which imposes such a requirement on the ATO and, as a result, it is under no obligation to notify taxpayers of an EOI in relation to their affairs.508 It should be noted, however, that the ATO is required to notify taxpayers where their personal information is being collected from third parties domestically.509

6.40 Internationally, it has been recognised that such notification procedures may be important to prevent mistakes, such as addressing any mismatches in identity510 and may also facilitate voluntary co-operation directly between the taxpayer and the jurisdiction requesting the information.511 Exceptions to these procedures have been envisaged to facilitate ‘effective exchange of information’512:

… notification rules should permit exceptions from prior notification (notably, in cases in which the information request is of a very urgent nature or the notification is likely to undermine the chance of success of the investigation conducted by the requesting jurisdiction) and time-specific post-exchange notification (for example, when such notification is likely to undermine the chance of success of the investigation conducted by the requesting jurisdiction).513

6.41 A 2014 report published by the global law firm Dentons, which compared 15 jurisdictions in Europe and North America, indicated that the majority of jurisdictions which were surveyed do not provide taxpayers with any notification when their information is sent to a revenue agency in another jurisdiction. The exceptions to this were France and Kazakhstan. In addition, the survey noted that, of the jurisdictions surveyed, only Germany, Spain and Switzerland notified the target taxpayer when a request for an EOI had been received in relation to their affairs.514

6.42 Australia’s tax treaties do not require taxpayers to be informed prior to an EOI.515 There are also no guidelines or policies that allow taxpayers to review the information to be exchanged with another jurisdiction.516 However, the ATO has advised the IGT that, except in instances of covert or urgent investigations, taxpayers would likely become aware of any planned EOI requests through discussions and engagement with BSL audit teams. Moreover, taxpayers who have concerns about data accuracy are able to raise them through existing channels, such as those set out earlier, for ATO investigation.

6.43 Whilst taxpayers are not informed specifically of EOIs, they are made generally aware of this possibility through such publications as the ATO’s Privacy Policy517 and the Our Approach to Information Gathering booklet.518

6.44 Furthermore, there is some evidence to suggest that an officer making an EOI request needs to consider whether the taxpayer should be informed. The relevant EOI template, which they must complete as mentioned above, includes a section on whether the taxpayer should be notified. Many of the EOI templates offer the following suggested wording for use where there is a request to not notify the taxpayer:

It is requested that the taxpayer not be notified as the case involves possible fraudulent activities and notification would prejudice the investigation.519

6.45 The wording can be altered to suit the needs and circumstances of the requesting officer. The template and guidance do not make it clear in what circumstances this wording would be appropriate or would need to be otherwise modified. The IGT understands that such modifications would occur through discussions between the requesting officer, the BSL Gatekeeper and the EOI Unit before the request is finalised. Some EOI templates adopt a different approach by requiring the requesting officer to positively consider whether the taxpayer should be informed520 and where the taxpayer is not to be informed, the requesting officer is required to provide supporting reasons for that decision.521

6.46 The ATO has advised the IGT that work is currently underway to consolidate the existing EOI templates into a single document to simplify the EOI process.

IGT observations

6.47 The processes currently employed by the ATO in relation to EOIs, their appropriate use and the safeguarding of taxpayer information, as outlined above, appear to be sound. The stakeholders’ concerns seem to stem from a lack of awareness of these processes.

6.48 As the ATO has acknowledged, whilst there is general information available on the different aspects of EOI, there is currently no publicly available guidance which comprehensively sets out the process for dealing with EOI requests and responses, including the roles of the various ATO officers, the safeguards for protecting taxpayer information and the avenues through which concerns may be raised. Ideally, such guidance should be set out in a practice statement to ensure that staff adhere to the relevant processes and taxpayers have a standard against which to hold them to account where those processes are not followed. However, in the present case, publication on the ATO’s website, with supporting hyperlinks leading to greater details for those taxpayers or practitioners who require them may be more appropriate. Such an approach would enable the ATO to quickly update the information as international standards and practices in this area evolve. Nevertheless, there is an expectation that ATO staff would follow it and taxpayers may rely on it in good faith.

6.49 In respect of notification, the IGT acknowledges that there is no legal requirement for the ATO to notify taxpayers of an EOI in relation to their affairs, nor is there a right for Australian taxpayers to review information before it is exchanged. However, the IGT notes that the ATO’s guidance on information gathering tends to support a cooperative approach, with the taxpayer generally being approached and informed before third party sources are considered.522 There are some exceptions to this approach which include instances where there may be a risk of prejudicing the investigation or where the taxpayer is the subject of a covert audit. The IGT believes that a similar approach could be applied to EOIs.

6.50 As a general principle, the IGT is of the view that the ATO should inform taxpayers when considering EOIs and even give them an opportunity to provide the required information themselves. Naturally, exceptions to this general approach are required such as in cases of serious fraud or evasion or where there is an appreciable risk of asset dissipation.

6.51 Where the taxpayer is notified prior to the information being requested or during preliminary audit discussions, it would promote greater transparency and engagement between the parties. For example, the taxpayer may be able to provide domestically-held information which would address the ATO’s enquiries but which had not previously been provided due to misunderstanding the nature of the ATO’s information requests. In such circumstances, there are opportunities for the ATO to minimise the time and costs associated with requesting information from foreign jurisdictions. It may also prevent unnecessary escalation of disputes and litigation.

6.52 In the exceptional circumstances mentioned above, there is a risk in disclosing information requests at such an early stage in the engagement. In higher risk and more sensitive matters, this may lead to taxpayers taking actions or adopting positions which could unduly frustrate any subsequent investigation. In these cases, the taxpayer should not be informed until the completion of the audit and issuance of assessment at which time the ATO is able to take protective recovery action such as freezing orders, garnishee notices and departure prohibition orders.

6.53 Once taxpayers are made aware of the EOI, they must be given an opportunity to review, correct or appropriately contextualise any relevant information obtained.

6.54 Ultimately, the point at which taxpayers are informed of the EOI and are afforded an opportunity to review the information obtained depends on a range of factors. The inherent risks associated with the investigation and the need to protect the revenue need to be balanced against the taxpayer’s right to understand and answer the case against them.

6.55 In relation to responding to EOI requests from other jurisdictions, the ATO has to abide by its treaty obligations. As set out above, there seems to be robust processes whereby the ATO assures itself that any taxpayer information provided to other jurisdictions would be protected once it leaves Australia. Other issues, such as review rights, arising between the taxpayer and the revenue agency in the other jurisdiction, should be addressed as a matter of domestic law in that jurisdiction in the absence of international norms.

Recommendation 4

The IGT recommends that the ATO centrally publish information on all aspects of EOI including:>

  1. its guidelines for requesting and responding to EOI;
  2. safeguards for protecting taxpayer information;
  3. avenues through which taxpayers may raise concerns; and
  4. when taxpayers would be informed of an EOI request being made in relation to their affairs and, where appropriate, have an opportunity to review the information obtained.

ATO response

Agree

The ATO has a long standing commitment to being transparent about our dealings with taxpayers. Using contemporary channels, we can maintain up-to-date guidance to help taxpayers understand when and why we exchange information with other tax jurisdictions and what it might mean for them. Contemporary channels also provide taxpayers the ability to click through to get more detailed information or make contact with an ATO staff member to assist them in understanding exchange of information.


447 OECD, Tax Co-operation 2009: Towards a Level Playing Field (2009), p 9.

448 Commissioner of Taxation, Annual Report 2014-15 (2015) p 19.

449 OECD, Model Tax Convention on Income and on Capital (2014) Article 26.

450 OECD, Model Agreement on Exchange of Information on Tax Matters (2002).

451 ATO, ‘PGH international bulletin – exchange of information (EOI) with overseas jurisdictions’ (6 April 2016) Internal ATO document.

452 Ibid.

453 Ibid.

454 Ibid.

455 Commissioner of Taxation, Annual Report 2014-15 (2015) p 19; Commissioner of Taxation, Annual Report
2015-16
(2016) p 139.

456 Commissioner of Taxation, Annual Report 2014-15 (2015) p 19.

457 Common Reporting Standard for the automatic exchange of information will take effect in Australia on 1 July 2017 and is intended to improve the ability of tax authorities to detect and address tax evasion through the exchange of financial account information to other tax jurisdictions.

458 The agreement was signed on 28 April 2014, with Australia’s obligations under FATCA outlined in legislation in Division 396 of the Taxation Administration Act 1953. The ATO has issued Foreign Account Tax Compliance Act – detailed guidance material on its website, www.ato.gov.au.

459 The JITSIC network focuses specifically on tackling cross-border tax avoidance and evasion.

460 OECD, Action Plan on Base Erosion and Profit Shifting (2013), p 23.

461 OECD, Transfer Pricing Documentation and Country-by-Country Reporting, Action 13 – 2015 Final report (2015).

462 Ibid, p 14.

463 Ibid.

464 Ibid, p 23.

465 Tax Laws Amendment (Combating Multinational Tax Avoidance) Act 2015.

466 Income Tax Assessment Act 1997, section 815-355.

467 ATO, Law Companion Guide LCG 2015/3 Subdivision 815-E of the Income Tax Assessment Act 1997: Country-by-country reporting (17 December 2015).

468 IGT, Review into the Australian Taxation Office’s management of transfer pricing matters (December 2013).

469 Temple v The Office of the Comptroller of Taxes [2014] JRC 244.

470 Ibid, at [27] – [28].

471 Ibid, at [27] – [28].

472 Ibid, at [8].

473 ATO, ‘Competent Authority – an overview’ (Internal ATO document, undated).

474 Ibid; ATO communication to the IGT, 16 December 2015.

475 ATO, ‘Exchange of Information Questions’ (Internal ATO document, undated); ATO, ‘EOI Internal referral’ (Internal ATO document, 9 June 2016).

476 OECD, Global Forum on Transparency and Exchange of Information for Tax Purposes, Peer Review Report – Combined Phase 1 and Phase 2 Report – Australia (2013) p 71, see Article 7 of TIEAs with Antigua and Barbuda; Dominica; and Jersey; ATO Communication (18 December 2015).

477 ATO, ‘EOI Internal referral’ (Internal ATO document, 9 June 2016).

478 ATO, ‘Competent Authority – Roles and Responsibilities’ (Internal ATO document, undated); ATO communication to the IGT, 16 December 2015.

479 ATO, PSLA 2007/13 Exchange of Information with foreign revenue authorities in relation to goods and services tax, under international tax agreements; ATO, PSLA 2007/14 Gathering and use of information from foreign agencies or sources in relation to goods and services tax, wine tax and luxury car tax administration.

480 OECD, Agreement on Exchange of Information on Tax Matters, Article 8.

481 OECD, Model Tax Convention on Income and on Capital, Article 26, p 40.

482 Above n 476, p 90.

483 ATO, ‘Exchange of Information Questions’ (Internal ATO document, undated).

484 Ibid.

485 Taxation Administration Act 1953, sch 1, s 355-25.

486 Above n 476.

487 ATO communication to the IGT, 18 December 2015.

488 Ibid.

489 OECD Global Forum on Transparency and Exchange of Information for Tax Purposes, Peer review of the implementation of the international standards for transparency and exchange of information for tax purposes, p 2.

490 OECD, About the Global Forum (undated) <www.oecd.org>.

491 OECD Global Forum on Transparency and Exchange of Information for Tax Purposes, 2016 Methodology for Peer Reviews and Non-Member Reviews, p 8.

492 Above n 476; See also CRS Annex 4 – Questionnaire on Confidentiality and Data Safeguards Questionnaire (17 December 2015).

493 The Treasury, Australian Tax Treaties: Income Tax Treaties <www.treasury.gov.au>; Note: The Treasury’s website does not include East Timor, which is listed in Appendix 3 of the ATO Privacy Policy.

494 OECD Global Forum on Transparency and Exchange of Information for Tax Purposes, Phase 1 and Phase 2 Reviews (14 March 2016).

495 The Treasury, Tax Information Exchange Agreements <www.treasury.gov.au>.

496 Global Forum, Phase 1 and Phase 2 Reviews (14 March 2016).

497 Above n 476, p 68.

498 Ibid, p 69.

499 ATO communication to the IGT, 9 February 2016.

500 Privacy Act 1988, s 96.

501 Administrative Appeals Tribunal Act 1975, s 44.

502 Taxation Administration Act 1953, Sch 1, s 355-25.

503 On 1 September 2016, legislation to give force of law to the new treaty was introduced into Parliament by the Minister for Revenue and Financial Services and the Minister for Finance. See: The Hon Kelly O’Dwyer MP and Senator the Hon Matthias Cormann, ‘New Australia-Germany Double Taxation Agreement Introduced into Parliament’ (Media Release, 1 September 2016).

504 Australia-Germany DTA, Article 30(e).

505 Australia-Germany DTA Article 30(b).

506 Australia-Germany DTA Article 30(c).

507 See for example, OECD, Global Forum on Transparency and Exchange of Information for Tax Purposes, Peer Review Report – Combined Phase 1 and Phase 2 Report – Germany (2013), pp 59-61.

508 Above n 476, p 54 at para [201].

509 Privacy Act 1988, Australian Privacy Principle 5.

510 OECD, Commentaries on the Articles of the Model Tax Convention (2010) ‘Commentary on Article 26’, p 404, at para [14.1].

511 OECD, Global Forum on Transparency and Exchange of Information for Tax Purposes, Exchange of Information on Request Handbook for Peer Reviews 2016-2020 (2016) p 158, para [14.1].

512 Ibid, p 22.

513 Ibid, p 22-23.

514 Dentons, Cross-border exchange of information procedures: What to expect, (2014), pp 4-5.

515 ATO communication to the IGT, 18 December 2015. Note: Under the revised treaty between Australia and Germany, a person who is the subject of an EOI request has a right to apply to be informed of the information supplied and how that information will be used.

516 ATO communication to the IGT, 18 December 2015.

517 ATO, Australian Taxation Office Privacy Policy (21 January 2016) <www.ato.gov.au>.

518 ATO, Our approach to information gathering (22 December 2015) <www.ato.gov.au>.

519 See for example, EOI templates for Romania, Russia, San Marino, Saint Kitts & Nevis, Saint Lucia, Samoa, Singapore, Slovak Republic, South Africa, South Korea, Spain, Sri Lanka.

520 See for example, Jersey TIEA request instructions guide, p 3.

521 See for example EOI template for Jersey.

522 ATO, Our Approach to information gathering (22 December 2015) <www.ato.gov.au>.