89MDisclosure notices

1. Unless subsection (2) applies, and subject to section 89N, the Commissioner must issue a disclosure notice in respect of a notice of proposed adjustment to a disputant at the time or after the Commissioner or the taxpayer, as the case may be, issues the notice of proposed adjustment.

2. The Commissioner may not issue a disclosure notice in respect of a notice of proposed adjustment if the Commissioner has already issued a notice of disputable decision that includes, or takes account of, the adjustment proposed in the notice of proposed adjustment.

3. Unless the disputant has issued a notice of proposed adjustment, the Commissioner must, when issuing a disclosure notice,—

4. provide the disputant with the Commissioner's statement of position; and
5. include in the disclosure notice—
   1. a reference to section 138G; and
   2. a statement as to the effect of the evidence exclusion rule.

6. The Commissioner's statement of position in the prescribed form must, with sufficient detail to fairly advise the disputant,—

7. give an outline of the facts on which the Commissioner intends to rely; and
8. give an outline of the evidence on which the Commissioner intends to rely; and
9. give an outline of the issues that the Commissioner considers will arise; and
10. specify the propositions of law on which the Commissioner intends to rely.

11. If the Commissioner issues a disclosure notice to a disputant, the disputant must issue the Commissioner with the disputant's statement of position within the response period for the disclosure notice.

12. A disputant's statement of position in the prescribed form must, with sufficient detail to fairly advise the Commissioner,—

13. give an outline of the facts on which the disputant intends to rely; and
14. give an outline of the evidence on which the disputant intends to rely; and
15. give an outline of the issues that the disputant considers will arise; and
16. specify the propositions of law on which the disputant intends to rely.

17. The Commissioner must issue a statement of position, described in subsection (4), in response to the disputant’s statement of position, unless—

18. the Commissioner issued a statement of position when issuing a disclosure notice:
19. on or before the date on which the Commissioner is required to issue the statement of position—
    1. section 89N(1)(c)(viii) applies:
    2. any of section 89N(1)(c)(i) to (vi) and (ix) apply.

20. In subsections (4)(b) and (6)(b), evidence refers to the available documentary evidence on which the person intends to rely, but does not include a list of potential witnesses, whether or not identified by name.

21. A disputant who does not issue a statement of position in the prescribed form within the response period for the statement of position, is treated as follows:

22. if the Commissioner has proposed the adjustment to the assessment, the disputant is treated as having accepted the Commissioner's notice of proposed adjustment or statement of position:
23. if the disputant has proposed the adjustment to the assessment, the disputant is treated as not having issued a notice of proposed adjustment.

24. The Commissioner—

25. may, within the response period for a disputant's statement of position, provide the disputant with additional information in response to the disputant's statement of position; and
26. must provide the additional information as far as possible in the manner required by subsection (4).

27. The additional information provided by the Commissioner under subsection (8) is deemed to form part of the Commissioner's statement of position.

28. The Commissioner may apply to the High Court for more time to reply to a disputant's statement of position if—

29. the Commissioner applies before the expiry of the response period for the disputant's statement of position; and
30. the Commissioner considers it is unreasonable to reply to the disputant's statement of position within the response period, because of the number or complexity or novelty of matters raised in the disputant's statement of position.

31. The disputant may apply to the High Court for more time within which to reply to the Commissioner's statement of position if—

32. the disputant applies before the expiry of the response period for the Commissioner's statement of position; and
33. the disputant considers it unreasonable to reply to the Commissioner's statement of position within the response period, because the issues in dispute had not previously been discussed between the Commissioner and the disputant.

34. The High Court shall, in considering an application under subsection (11), have regard to the provisions of section 89A and the conduct of the parties to the dispute.

35. The Commissioner and a disputant may agree to additional information being added, at any time, to either of their statements of position.

36. The additional information provided by the Commissioner or a disputant under subsection (13) is deemed to form part of the provider's statement of position.