The Australian Taxation Office (ATO) holds a special suite of powers beyond the usual debt recovery strategies that sets them above the usual creditor.
Beyond the standard wind up action for companies and bankruptcy proceedings for individuals, their powers extend to:
- Director Penalty Notices
- garnishee orders to third parties
- estimates and default assessments.
Failure to comply with the ATO’s requirements can have serious implications. So you need to:
- be informed
- be upfront
- lodge company statements on time
- maintain a good set of books.
The ATO’s Approach
To level the taxpayer’s playing field, the ATO announced their firmer approach to debt collection. They’re now taking a tough stance on non-complying businesses with unpaid tax liabilities, particularly those that:
- repeatedly default on payment arrangements
- avoid financial obligations by liquidating companies and setting up new business entities (phoenix activity)
- have escalating debt with no signs they’ll be able to meet their obligations, and so are avoiding contact with the ATO.
With the ATO’s powers expanding through legislative amendments in June 2012, you need to keep your payments and contributions up to date, and keep the ATO up to date about your company’s position.
Director Penalty Notices (DPNs)
One of the ATO’s most powerful tools is being able to issue a Directors Penalty Notice against company directors for certain company debts, including:
- Pay as You Go (Withholding) (PAYGW)
- Superannuation Guarantee Charge (SGC).
Under the Director Penalty regime, the ATO distinguishes between two types of Director Penalty Notices: the standard DPN and the Lockdown DPN.
Standard or ‘Non-Lockdown’ DPN
The ATO issues a standard DPN when the company has lodged its Business Activity Statements (BAS) or Instalment Activity Statements (IAS) but the debts remain unpaid.
The written notice:
- Identifies the unpaid amount of the company’s unpaid PAYGW or SGC liabilities (SGC amounts include a nominal interest component and administration fees)
- States the director is liable to pay that amount as a penalty.
The ATO can issue DPNs against directors (including shadow and de facto directors) who have resigned or come on board since the liabilities were incurred if they’ve been in office for more than 30 days. So a newly-appointed director who has been in office for more than 30 days can be liable for all outstanding PAYG withholding and SCG liabilities incurred after 30 June 2012.
(The DPN is sent to the last known ASIC company address, so it’s important to keep your registered ASIC details and company records up to date.)
Once a DPN is issued, the director has 21 days (from the date it was posted) to either:
- pay the outstanding debt
- appoint a voluntary administrator
- enter the company into liquidation
Each director will owe the same amount under the DPN as the company’s total liability for tax. If the company’s unpaid debt is $15,000, each director’s DPN will be issued in the amount of $15,000.
With a Lockdown DPN (also known as the ‘three-month lockdown’ provision), the director of any company that fails to lodge its PAYG and/or SCG returns to the ATO within three months of the due date will automatically become liable.
The directors can’t appoint a voluntary administrator or liquidator to avoid personal liability for payment. Instead they have to either:
- pay the debt in full
- enter into personal insolvency
- rely on one of the defence provisions.
A Lockdown DPN can be issued at any time, regardless of whether the director has already placed the company into liquidation or voluntary administration.
The ATO also has the power to issue a third party (i.e. a bank) who owes the company/director money a Garnishee Notice, forcing the party to pay it straight to the ATO. The Notice can ask for a percentage of wages or a lump sum, which cannot be recovered in a liquidation as an unfair preference.
For individuals, the notice be issued to their employer or contractor. And for businesses, the notice may be issued to their financial institution or trade debtor.
Non-lodgment: Estimates and Default Assessments
If the company won’t disclose its unpaid liabilities, the ATO can step in and estimate an outstanding PAYGW or SCG liability on behalf of the company giving notice to the company of their reasonable estimate.
The estimate becomes payable as a separate liability along with the actual shortfall, although the director can provide a statutory declaration specifying the actual liability amount.
If the director fails to pay the estimated sum, they’ll be liable for a penalty that can form the basis of a statutory demand to wind up the company.
The ATO can also issue a default assessment.
What you should do to avoid all this
To avoid the long arm of the ATO you should:
- Ensure your ASIC details and records are up to date
- Report on time (BAS and Superannuation Guarantee Charge statements)
- Be proactive and timely in obtaining advice
- Remain informed about your PAYG and SGC payment obligations
- Appoint a liquidator if your company is insolvent.