The Federal Court has dismissed a taxpayer’s application to prevent ATO officers who were to conduct an interview of him under s 264 of the ITAA 1936 from using evidence he had previously given in an examination by the Australian Crime Commission (ACC) in relation to a Project Wickenby investigation.

The taxpayer, a director of an investment bank, had been issued with amended assessments for the financial years 2000 to 2007, increasing his personal income tax liability by some $20m (including substantial penalties) following an audit by the ATO. The audit was carried out in connection with information obtained by the ATO from the taxpayer’s prior examination by the ACC (at which ATO officers were present).

(LHRC & Ors v DCT (No 3) [2015] FCA 52, Federal Court, Perry J, 6 February 2015)

[LTN 35, 23/2/15]

FJM Note

Evidence must be given in ACC hearings without the benefit of legal professional privilege but in return a prohibition on the use of primary source information for criminal prosecution. The taxpayer was concerned that being forced to give evidence on oath under s264 would undermine the protections given to him under the ACC law. However the Federal Court went through and dismissed each of his objections.