A TDS is a summary of adjudication or private ruling decisions made by the Tax Counsel Office (TCO). It is expected that TDS’ will be published within three months of a technical decision being finalised. TDS’ will not be binding on the Commissioner; they are a summary of a technical decision and they are for information only. They are intended to provide a little more guidance as to Inland Revenue’s legal interpretation process. This is the first time TCO’s legal analysis on technical compliance issues has been made public.

A TDS will be written by someone within TCO who was not directly involved with making the decision and will have four sections:

• Facts
• Issues
• Decisions
• Reasons for decisions

The Inland Revenue has advised that the TDS will include a summary of the factual situation and “sufficient” details of the legal analysis to be able to understand the reasons for TCO’s technical decision. However, it must be remembered that a TDS is only a summary of the technical decision. Inland Revenue has issued a guideline for the publication of TDS’.

A TDS will not contain any information that could identify a taxpayer or include any confidential or commercially sensitive information. Before a TDS is published it will be sent to the taxpayer or their advisor so that they can review the draft to confirm the TDS does not breach confidentiality or include commercially sensitive information. Taxpayers have one month to contact the Inland Revenue if they have any concerns with the TDS before it is published.

In short, no. The Inland Revenue has stated that while it is intended that most technical decisions will be published, there are some legal and practical reasons that may prevent some from being published. Examples provided by Inland Revenue in their guideline of “characteristics” that would prevent publication include:

• Where it is not possible to appropriately protect the confidentiality of the taxpayer or another party.
• Inland Revenue has decided the decision should not be followed in other contexts, or will not be applied to other taxpayers, pending an urgent consideration of the decision at the national level.
• The decision has been formally escalated within Inland Revenue and the Commissioner’s position may change.
• The decision will be included in a public statement that will have public consultation.
• Implications of the decision mean the integrity of the tax system or certainty for taxpayers requires the Commissioner to engage with the government or give careful consideration regarding its implementation and communication.
• The issue has been referred to the Policy group for immediate legislative clarification or rectification due to the serious risk of undermining the tax system’s integrity, government revenue or taxpayer certainty if it became public knowledge.
• The issue is purely procedural or administrative in nature and not likely to be of interest to taxpayers or advisors.

The decision to publish TDS’ also only apply to private rulings that have been issued by TCO. What may not be known by taxpayers and advisors is that often the Customer and Compliance Services – Business (CCS) unit of Inland Revenue prepare and issue private rulings. These CCS issued rulings will not, at this stage, be published.

There has been a huge body of law amassed by the Inland Revenue that taxpayers and their advisors are not privy to. Publishing these decisions is a step forward in improving the transparency of Inland Revenue’s decision-making on matters of legal interpretation.

However, Inland Revenue should reconsider its position on not publishing all decision’s that do not involve the protection of taxpayer confidentiality or the integrity of the tax system. Withholding a decision on the basis that there are differences of view within Inland Revenue because Inland Revenue intends to issue a public statement or the decision is subject to escalation undermines the key reason to publish and will present an incomplete picture of decisions made by the TCO.