ATO whistleblower Richard Boyle pays the price
AUSTRALIAN BUSINESS REVIEW February 12, 2019 Robert Gottleibsen
The ATO has been playing hardball with Australia’s small businesses.
Arguably Australia’s most significant whistleblower, the man who forced both our major political parties to alter their small business taxation appeal policies, is now set to face a court battle. That’s the cost of being a whistleblower.
But, as I will detail below, as the whistleblower prepares his defence, the government has announced that from March 1, Australian small business will have a proper and fair taxation appeal process.
It’s a process without lawyers and one that sits outside the clutches of the Australian Taxation Office’s notorious “kangaroo court” processes. I have been campaigning for this wonderful development for three long years, but it might never have happened without the whistleblower taking us inside the ATO.
The ATO whistleblower has been charged with some 66 summary and indictable offences. A number the alleged offences involve allegations of telephone tapping and the recording of conversations. It will be the courts to decide these matters in accordance with the law.
But it’s the parliament that sets that law and both major parties and the Australian nation owe a debt of gratitude to the whistleblower Richard David Boyle. Fortunately both major parties are proposing whistleblower protection legislation. Nothing can be done until after the election, but I would urge that whoever wins should prepare legislation so that public service whistleblowers do not risk jail for benefiting the nation. Indeed, if the ATO whistleblower loses his case then the precedent will be created that enables public servants to be totally insulated from whistleblowing. There will be no public accountability because the cost being a public hero is too great.
In the small business area there has been no greater Australian champion than Richard Boyle. It was Boyle who graphically revealed the activities of the Australian Taxation Office which not only threaten our greatest area of employment but endanger confidence in the Australian revenue base.
For some three years I have been writing about the ATO targeting of small business, low-income earners and those who received government research grants; the decimation of the entire Australian gold refining industry and more. But speaking with Adele Ferguson of ABC TV’s Four Corners and Fairfax Media last year, it was Richard Boyle whose graphic description of what actually went on behind the scenes in the ATO that showed everyone just how aggressive the ATO has become in small business area.
Thanks to Boyle’s courage and sense of national interest, the major Australian political parties finally realised that the small business appeal system had to change. The ALP announced a policy to give persecuted small business a chance to lodge a fair appeal. The ALP system was not perfect, but it was far better than the current regime where there is no effective affordable appeal (large enterprises can afford the court appeal system which works). The ATO recently settled a substantial sum on a family who had been a beneficiary of the governments research grants. The move by the ATO destroyed the business and the family home was lost. That family received outside held to fight the ATO and win. Most taxpaying small enterprises that can’t raise the money lose their homes and business. They have no affordable appeal.
Its thanks to Richard Boyle that both parties are headed in the right direction. Australia desperately needs a proper independent small business tax appeal system given the ATO culture that was so brilliantly described by the recently retired and highly respected Federal Court judge Richard Edmonds SC:
“It is not (the ATO) leadership that is the problem, but the existence of a mentality, maintained by too many ATO officers for too long, that taxpayers on the whole are cheats and liars and anything the ATO does to bring them to account can be justified on grounds that it is reasonable and proportionate in terms of the purpose for which the relevant power was granted”.
Richard Boyle graphically illustrated Richard Edmonds description of the ATO culture with real life examples.
As a whistleblower Boyle was prepared to face whatever the consequences knowing he had acted in the best interests of the country he loves.
He will need all the help a grateful Australian small business community can give him.
The Coalition will introduce a regulation into the parliament to establish the appeal process. Hopefully the ALP and cross benchers will not oppose it.
Here is how it will work: There will be a Small Business Taxation Division within the Administrative Appeals Tribunal (AAT) and not the Australian Taxation Office. Lawyers will have a very restricted role, so the costs should be affordable for small business – two hallelujahs for that!
In preparation for the appeal, and prior to applying to the AAT, an unrepresented small business can receive one hour of legal advice for a reasonable $100 co-payment
After paying the AAT a reduced application fee to review an adverse ATO decision, such as affirming an audit or cancelling an ABN registration) , the small business will have a dedicated case manager throughout the process.
Unrepresented small businesses may also receive an additional hour of free legal advice to be administered by the Australian Small Business and Family Enterprise Ombudsman’s office.
The general rule is that these hearings in the AAT will be without lawyers.
Where the ATO engages external legal counsel in the AAT and the small business does not have legal representation, the ATO will cover the cost of providing the small business with equivalent legal representation. The AAT’s decision will be made within 28 days of the hearing.
We will of course await the detailed regulation