ATO Director Penalties: What Company Directors Need to do to Avoid Personal Liability

Business & Company 10/09/2018 by Amanda Crosbie

Under the ATO’s Director Penalty regime company Directors can be personally liable for company obligations.

The Director Penalty regime applies to unpaid “PAYG” withholding amounts and Superannuation Guarantee Charge “SGC” obligations.

The effect of the Director Penalty regime is that if a company of which a person is a Director fails to ensure that the company pays its PAYG withholding and/or SGC liability obligations by the due dates, the Director becomes personally liable for a penalty equal to the unpaid PAYG withholding or SGC amounts. These penalties are known as “Director Penalties”.

Director Penalty Notices

The Commissioner of Taxation may not, however, commence any proceedings against a Director to recover a Director Penalty until the expiration of 21 days after the Commissioner has given a Director Penalty Notice under Section 269-25(1) of Schedule 1 of the Taxation Administration Act 1953.

Remitting a Director Penalty

Except in the circumstances where the company has both failed to report and pay a relevant amount of PAYG withholding within three (3) months of the due date for payment, a Director Penalty for failure to pay PAYG withholding will be remitted and personal liability avoided where, within 21 days of the Director receiving the Director Penalty Notice, the company:

  1. pays the relevant debt,
  2. appoints an Administrator under Sections 436A, 436B or 436C of the Corporations Act, or
  3. appoints a Liquidator to wind up the company.

Lock Down Director Penalty Notices

Where the company has not reported or paid PAYG withholding within three (3) months of the due date or SGC liability amounts by the due date, a Director Penalty will only be remitted if the company pays the debt.  That is, the appointment of an Administrator or a Liquidator following receipt of a Director Penalty Notice in these circumstances will not absolve the Director from personal liability for the Lock Down Director Penalty amount.

Payment Arrangements

Where a company applies for a payment arrangement to pay the relevant debt, the Commissioner of Taxation is prevented from taking any steps to recover a Director Penalty so long as the arrangement is being performed. However, the making of the payment arrangement either before or following the issue of a Director Penalty Notice will not cause the Director Penalty to be remitted unless the payment arrangement results in payment of the debt in full.

Defences

In some circumstances a Defence is available under Section 269-35 of the Taxation Administration Act to actions brought for recovery of Director Penalties.  In summary, a Director will not be liable for a Director Penalty if:

  1. because of illness or for some other good reason, the Director did not take part (and it would have been unreasonable to expect the Director to take part) in the management of the company, or
  2. the Director took all reasonable steps to ensure that one (1) of the following three (3) things occurred:

(a) the company paid the amount payable,

(b) an Administrator was appointed to the company,

(c) a Liquidator was appointed to wind up the company, or

(d) there were no reasonable steps the Director could have taken to ensure that any of the above three (3) things occurred.

Safe Harbour

Whilst recent amendments to the Corporations Act 2001 can safe harbour Directors from personal liability for insolvent trading if, among other things, the Director is taking steps to develop a course of action that is reasonably likely to lead to a better outcome for the company, the safe harbour provisions do not extend protection for Director Penalties.

What to do

If you are concerned about Lock-Down Director Penalties or have received a Penalty Notice we suggest you urgently contact us for advice and assistance.

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