New Protocol Published By ATO Regarding Legal Professional Privilege

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The Australian Taxation Office (ATO) has published its recommended approach to respond to formal notices requiring the production of documents, specifically for identifying communications covered by Legal Professional Privilege (LPP) and making LPP claims where the taxpayer does not wish to provide those communications to the ATO.

This protocol will support the right of taxpayers to keep their legal advice confidential while at the same time giving taxpayers a robust framework to enable the ATO to have confidence that all other relevant documents have been provided.

While it’s voluntary to follow the steps outlined in the protocol, it’s more likely that the ATO will accept LPP claims without further enquiries if the protocol is followed. The protocol applies to legal and non-legal practitioners and all LPP claims, regardless of the firm or business structure within which the service or engagement is provided.

The protocol contains three steps for taxpayers who receive an information-gathering notice and wish to make an LPP claim:

  • assessing the full situation and all of the communications involved;
  • explaining the basis of the LPP claim; and
  • advising the ATO on how the LPP claim was approached.

Here’s a tip: legal professional privilege is a highly contested area.

Whether a document or information is subject to LPP can depend on the facts of your case. If you’ve been issued a notice under the ATO’s formal information-gathering powers, we can save you time and help you work out which documents are subject to LPP under the new protocol.

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