The Full Federal Court has unanimously upheld a decision that a notice to produce documents was valid. In May 2018, the ATO issued a notice pursuant to s 353-10 of the TAA53 requiring CUB to produce certain documents. CUB refused to produce some of the documents claiming legal professional privilege (LPP). In March 2020, the ATO issued a further s 353-10 notice requiring CUB to provide certain information for every document which CUB contended was subject to LPP, including: the title of the document or, where the document was an email, the subject line of the email; the author of the document; and the name of each person to whom the document was communicated.

In CUB Australia Holding Pty Ltd v FCT [2021] FCA 43, Moshinsky J found that the ATO’s “primary or substantial” purpose in issuing the second notice in March 2020 was to decide whether or not to challenge CUB’s LPP claims and that was a valid purpose.

The Full Court has unanimously upheld this decision, rejecting CUB’s submission that, in issuing the second notice, the ATO was motivated by a substantial and improper purpose, namely, the actual determination of the LPP claims (something only a court could do).

(CUB Australia Holding Pty Ltd v CofT [2021] FCAFC 171, Full Federal Court, Middleton, McKerracher and Griffiths JJ, 21 September 2021.)

NOTE – the ‘title’ OF A DOCUMENT or ‘subject line’ of an email, might, itself, be ‘privileged’ and beyond the reach of the power to compel production. According to one of the barristers in the case, who I spoke to, this will be contested in the next part of the case (it got broken into parts and the scope of the ‘privilege’, itself, remains to be determined. This part of the case (reported here) was about whether the s353-10 notice to produce was invalid, by virtue of being issued for an improper purpose. The Court determined that issuing a notice to produce documents / information, for the purpose of better assessing claims of privilege, was proper (and it didn’t seem to matter, that the ATO asked for information that, itself, could have been the subject of privilege).


TAXATION – statutory notice to give information – where Commissioner sought particulars of documents over which legal professional privilege had been claimed – whether the notice was invalid on the ground that it was issued for an improper purpose – whether the extent of information sought and prior requests in correspondence indicated the Commissioner’s purpose was to determine the validity of the privilege claims – where the primary judge found that the primary and only purpose of the notice was to provide the Commissioner with sufficient information to decide whether to accept or challenge the privilege claims – whether the primary judge erred in the application of principles concerning multiple purposes.

[Tax Month – September 2021] [22.9.21]



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