PwC said there were “suggestions” that McNab may have shared the date with other companies but “we have not identified any communication to any other company to that effect”.
“Suggestions” is one way to put it. On August 5, 2015 Collins emailed another partner, “Main questions from clients relate to start date”, one of multiple assurances from him about the timing.
“Unless they know about a deal one of the IT companies has brokered with the prime minister or treasurer or the minorities, I cannot imagine [a delay],” Collins wrote. “Treasury was crystal clear on this and the politics of delaying the rule for the dirty 30 seems impossible. There is no sympathy for this group in treasury or govt or the ATO. Controversy treasure trove if we can land a few of these.”
Another partner emailed August 6 about how helpful Collins’ information was at a PwC “global brainstorm” session in the US about future tax strategy for tech companies: “The intel is very helpful here.”
One of the things Collins decided that they wouldn’t share was the fact that a PwC staff member was working on the Google tax at Treasury, “in case the tech cos don’t like it”.
In another email Collins said he had “sent you a note … which we should send to your friends in the bay”, a reference to tech companies in the San Francisco Bay area.
Despite references to multiple companies, just one email was sent to one of them. Or perhaps rather, just one email that wasn’t covered by legal professional privilege.
Which brings us back to those confidential settlements with the ATO – and woe betide anyone like the Tax Practitioners Board that tries to catch a look at them.
Such a breach of taxpayer secrecy threatens the whole faith in the tax system, Second Commissioner Jeremy Hirschhorn assured the Senate inquiry last month.
These agreements can cover future actions as well. The ATO code of settlement says: “The ATO cannot guarantee in a settlement freedom from prosecution, however, the ATO can agree not to allocate resources to investigate a taxpayer’s disclosure for the purposes of prosecuting a taxpayer for a criminal offence or to refer the taxpayer for criminal investigation by another law enforcement agency.”
That’s a world of comfort for any tech company tax director, if indeed that’s in the fine print boilerplate. It’s not to say they did anything wrong, but the optics of any investigation would be challenging.
It took six years for the PwC emails to become public, in part because of the ATO’s insistence that it could not investigate non-tax crime even though it wanted to. And it shows no sign of wanting to revisit anything connected to those settlements.
The tech guys are safe.
