S 353-10 notice seeking particulars about documents related to privilege claim – improper or not?
TBA member Khai-Yin Lim discusses the Full Federal Court’s recent decision in CUB Australia Holding Pty Ltd v Commissioner of Taxation regarding whether the Commissioner’s purpose in seeking particulars about documents over which CUB claimed privilege was improper. A PDF copy of this article is available to download below.
In CUB Australia Holding Pty Ltd v Commissioner of Taxation  FCAFC 171, the Full Court held that the Commissioner’s purpose (or substantial purpose) in seeking particulars about documents over which CUB claimed legal professional privilege (LPP), was not improper.
The particulars sought by the Commissioner in a notice pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (Notice) were:
the title of the document;
the name of the person who authored the document;
the name of each person to whom the document was communicated; and
where the document was an email, the subject of the email, and for each person who received the email, whether the email was sent directly to the person or copied to the person.
By the originating application, CUB sought judicial review of the decision of the Commissioner that CUB be required to give him information pursuant to the Notice. In its first three grounds, CUB challenged the validity of the Notice on the basis that the Commissioner’s purpose (or substantial purpose) in seeking the information was to determine the validity of CUB’s LPP claims. The Commissioner’s position was that he was seeking information which would enable him to form a view as to whether or not to challenge CUB’s LPP claims.
The primary judge found that:
CUB’s factual contention that in issuing the Notice, the Commissioner’s primary or substantial purpose was to determine the validity of CUB’s LPP claims, was not established;
the Commissioner’s purpose (or substantial purpose) in issuing the Notice was to obtain information that he considered necessary to determine whether to accept or challenge CUB’s LPP claims;
the Commissioner considered that the documents which were responsive to his previous notice issued in 2018 in connection with an audit, remained relevant to the statutory functions he was still carrying on;