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In what’s being described as a landmark decision, the High Court has ruled the ATO may use information from data leaks, even leaked from a law firm.
In the matter Glencore International v Commissioner of Taxation, the High Court ruled that the ATO can continue to use the “Paradise Papers” and other similar data leaks, including those obtained from law firms.
“The information in question was already in the public domain.
“Once we have information we can’t just ignore it – we are obliged to use all relevant information we have.”
Mr Hirschhorn said it would be a “perverse outcome” if the ATO and the courts were unable to take into account information already in the public domain, or similarly, had to “forget” such information is known.
“This ruling ensures that the ATO will continue to be able to use information in its possession, and can make decisions based on all of the available facts,” he said.
“An offshore law firm is not a cloak of invisibility to hide offshore arrangements.”
Commenting on the notion of privileged information, Mr Hirschhorn said: “The ATO fully supports the appropriate use of privilege and understands the importance of entities being able to seek advice on issues of law – we want taxpayers to have full access to high-quality independent tax advice”.
“We are working with key partners in the tax system to ensure that taxpayers can confidently continue to obtain high-quality independent legal advice on their tax affairs, but also that the ATO can appropriately review transactions without having critical evidence withheld,” he said.
“The public may have the false impression that this case was about the ATO seeking to access legal advice. In reality, we are interested in facts, not someone else’s analysis of tax law.
“The critical importance of the case was confirming that the ATO can use leaked copies of documents like contracts, board minutes and banking details.”
