Recent changes to the directors' penalty regime

Articles Written by Jane Trethewey

Introduction

On 29 June 2012, legislation amending the directors' penalty (DP) provisions in Division 269 of Schedule 1 to the Taxation Administration Act 1997 (Cth) (TAA) and associated measures was enacted. The changes generally apply from 30 June 2012.

1.  The 3 main changes to the DP regime are:
  • The regime (which previously applied to unpaid amounts withheld by the company under the pay-as-you-go (PAYG) withholding provisions) has been extended to unpaid superannuation guarantee charge (SGC) liabilities.
  • Directors can no longer discharge their personal liability by having the company placed into administration or liquidation once 3 months have elapsed form the company's due date for payment.
  • Directors and their associates may be liable for a new tax which effectively reduces or eliminates their credits for amounts withheld by the company from their entitlements.

2.  The provisions apply to all companies (whether small or large, private or listed) and to all directors, regardless of their degree of culpability.

3.  The changes significantly increase directors' risk of personal liability for the relevant tax liabilities of the company.

4.  Directors need to be more vigilant than ever to ensure the company is meeting (and at the very least, reporting) its tax obligations and take prompt action if it appears the company is having difficulty paying these amounts. The onus on directors is high and they cannot simply rely on the financial officer to handle these matters.
 

Background

History

The DP regime for unremitted amounts withheld from salary and wages and other payments were introduced in the IncomeTax Assessment Act 1936 (Cth) (ITAA 1936) in 1993, replacing the priority previously given to the Commissioner of Taxation (Commissioner) for these amounts under insolvency law.1 The provisions were re-written into Division 269 of Schedule 1 of to the TAA in 2010.

Policy rationale

The original policy objective of the DP provisions was to ensure directors cause the company to meet the relevant tax obligations or promptly put the company into administration or liquidation.

The stated policy objectives of the 2012 changes were to:

  • Deal with fraudulent 'phoenix' activity; and
  • Protect workers' entitlements, by strengthening directors' obligations and deterring them from using amounts withheld from those entitlements for the company's or other purposes instead of paying them to the Commissioner or superannuation funds.'

Context of the 2012 changes

Following the 'global financial crisis', the Government became increasingly concerned about fraudulent 'phoenix' company activity and its impact on recovery of tax revenues. Briefly, 'phoenix' activity involves a company carrying on business and accumulating debts (often tax debts related to employee entitlements), without any intention of paying them. The company is then put into liquidation and wound up without the debts being paid and the business is re-started in a new company. This activity usually involves companies with larger labour forces, in industries such as building and construction, labour hire, security and road transport. It generally involves closely held private companies but, according to the ATO, has increasingly been undertaken by much larger businesses in a wider range of industries. Even without fraudulent intent, there has always been a temptation for some companies facing liquidity problems to use amounts withheld from employees' entitlements as a short-term solution to these problems. This becomes more prevalent in an economic downturn.2

The problem for the ATO was that these unpaid amounts did not necessarily come to the Commissioner's attention (as the company was also not reporting the amounts), at least until the problem had become much larger. The Commissioner could issue a DP notice but the directors could avoid liability by putting the company into administration or liquidation. Non-payment of these amounts is regarded as particularly egregious, as they are regarded as being effectively held 'in trust' for the ATO (or the employees' superannuation funds, as applicable). In the case of PAYG amounts, the employees obtain credit for the withheld amounts even if they are not paid to the Commissioner.

The Government was concerned that the existing measures in the tax and corporate law were not adequate to address these issues. It was particularly concerned about the ability of directors to escape DP liability by putting the company into administration or liquidation at any time. The Government asked Treasury to consider proposals for addressing these problems and the Treasury Proposals Paper was released in November 2009. The Government announced in the 2010-2011 Federal Budget that it would amend the DP provisions to extend it to SGC, to enable the Commissioner to recover after 3 months without issuing a notice (i.e. 'automated' recovery) and to prevent access to PAYG credits for directors and their associates.

Exposure draft (ED) legislation was released for consultation in July 2011 and (after the DP measures were removed from a Bill that was introduced into Parliament in October 2011) a new ED was released in April 2012. The legislation enacting the DP changes received Royal Assent on 29 June 2012.3

Summary of the DP provisions

Summary of the DP provisions

Broadly, the DP provisions impose a penalty on directors for the relevant unpaid liabilities of the company to the Commissioner. Prior to the 2012 changes, the DP provisions applied only to unpaid liabilities to pay to the Commissioner amounts withheld by the company from certain payments under the PAYG withholding provisions - most importantly, payments of salary and wages etc. to employees, but also various other payments made and received by the company that are subject to the PAYG withholding provisions. The provisions now also apply to unpaid SGC liabilities. The relevant liabilities include a liability to pay an estimate under Division 268 of Schedule 1 to the TAA.4

DP liability and notices

The directors are liable for a DP if the company has not paid the relevant liability5 and has not been put into administration or liquidation on or before the day on which the liability is due to be paid to the Commissioner (due day). The amount of the penalty is equal to the amount of the company's unpaid liability. While the DP liability arises on the due day, the Commissioner cannot commence proceedings to recover the penalty until 21 days after he gives the director a DP notice. The notice is deemed to be given when it is posted to, or left at, the director's residential or business address as shown in current ASIC records, regardless of whether or when the director receives it.

The Commissioner says he will usually issue DP notices before seeking to have the company wound up.6 There is no time limit for the issuing of a DP notice. The Commissioner also cannot commence proceedings to enforce an obligation or recover a DP if an instalment payment arrangement is in place for the company but this does not prevent the Commissioner from issuing DP notices.

Remission of penalty

The penalty is remitted if, within 21 days after the Commissioner gives the director a DP notice, the director causes one of the following to occur:

  1. Payment of the liability by the company; or
  2. Appointment of an administrator to the company;
  3. Commencement of winding up of the company.

However, there is now a 3-month time limit on when directors can discharge their liability by putting the company into administration or liquidation (see further below).

Which directors are liable?

Directors who are liable for the penalty are:

  • The directors in office at or after the time when the liability arose (i.e. the time of withholding, in the case of a PAYG withholding amount or the end of a quarter, in the case of SGC), even if they are no longer a director by the due day;
  • A director appointed after the due day (new director), provided the liability is still outstanding and the company has not been placed into administration or liquidation at the time of their appointment and at the end of 30 days (previously 14 days) after their appointment.

A 'director' for this purpose is as defined in the Corporations Act, which includes de facto directors.

Directors of a corporate trustee can be liable for DP in respect of unpaid liabilities of the trust. This includes directors of a former trustee where there has been a change of trustee and the relevant liability arose while the former trustee was in office.7

Parallel liabilities

The DP liabilities of relevant directors are parallel liabilities and the Commissioner may recover from any one or more of them (up to a total amount of the company's liability). In deciding which director to pursue in attempt to recover the full amount of the company's underlying liability, the Commissioner says he will have regard to (among other things) each director's capacity to pay and the relative merits of any defences available to them. Subsequent payment by the company of its liability or payment by a director of their DP liability will discharge the company's liability and the DP liability all directors, to the extent of the payment. A director who pays a DP liability has rights of indemnity and contribution against the company and the other liable directors and former directors, as if they had paid the liability under a guarantee and were jointly and severally liable with every other person liable for the penalty. Rights of subrogation etc. also apply.

Defences

The defences available to directors are:

'Good reason' defence: because of illness or for some other good reason, it would have been unreasonable to expect the director to (and the director did not) take part in the management of the company at any time while they were a director and under the obligation (i.e. while the company's liability remained unpaid and the company had not been put into liquidation or administration). 'Reasonable steps' defence: the director took all reasonable steps to ensure that either the company complied with its obligation or an administrator or liquidator was appointed to the company or, alternatively, there were no reasonable steps the director could have taken to ensure any of these things happened. In determining what are reasonable steps, the Commissioner must have regard to when and for how long the person was a director and took part in the management of the company and any other relevant circumstances. The mere fact that the company had insufficient funds is not relevant. Relying on the advice of others is not sufficient. Reasonably arguable position and reasonable care (SGC only): the company treated the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA) as applying to a matter (or an identical matter or matters) in a particular way that was reasonably arguable, provided that the company also acted with reasonable care.

The good reason and reasonable steps defences have been construed quite restrictively by the Courts.

A new limitation on the availability of the good reason and reasonable steps defences now applies - they can no longer be relied upon (outside court proceedings) unless the director provides all necessary information to the Commissioner within 60 days of receiving a relevant notice from the Commissioner (see further below). In short, the defences are quite limited, and made even more so by the new information requirements. There is no defence of 'acting honestly'. A director who did not actively participate in, or intentionally or recklessly cause, the company's non-compliance can still be liable for a DP, including where the non-compliance was due to an inadvertent oversight or error (e.g. due to a systems failure).

Section 1318 of the Corporations Act (which gives a court power to relieve an officer, employee etc. of a company from liability in civil proceedings in respect of negligence, default or breach where the person has acted honestly and, having regard to all the circumstances, the person ought reasonably to be excused) does not apply to the DP provisions.

Summary of the 2012 changes to DP provisions

Summary of the 2012 changes to DP provisions

Extension of the provisions to SGC

The SGC liability is deemed For this purpose to arise at the end of the quarter and be payable when the company is required to lodge its superannuation guarantee (SG) statement for the quarter, regardless of whether it has been assessed. Division 268 have also been amended to provide for estimation of a company's SGC liability.

New directors

The period of 'grace' for new directors has been extended from 14 to 30 days after their appointment.

Time limit on putting the company into administration or liquidation

Directors can no longer avoid liability by putting the company into administration or liquidation after 3 months have elapsed from the company's due date (or, in the case of new directors, from when they became a director), to the extent that the amount remains unpaid and unreported to the Commissioner at the end of that 3-month period. After this time, unless a defence applies, a director can do nothing to avoid liability other than to cause the company to pay. The 3 months may have elapsed before the DP notice is given to the director. However, unless the relevant liability is under an estimate, directors can preserve the remedy of putting the company into administration or liquidation by ensuring the company reports the unpaid amounts to the Commissioner (in accordance with the reporting requirements in the relevant legislation) within the 3-month period.

Extra defence for SGC

In addition to the existing 'good reason' and 'reasonable steps' defences, a 3rd defence is available in relation to unpaid SGC liabilities, namely the defence that the company took a reasonably arguable position in relation to the application of the SGC legislation and also exercised reasonable care. This defence was added because of the more complex and contentious issues that can arise under the SGAA (e.g. in relation to contractors and the concept of 'ordinary time earnings') as compared to the PAYG withholding provisions.

New proof and information requirements for good reason and reasonable steps defences

A director cannot rely on either the good reason or reasonable steps defence unless:

  • In the case of court proceedings (by the Commissioner to recover a DP or by another director or the company in relation to their right of indemnity etc.) - the director proves the matters required for the defence;
  • In the case of recovery by the Commissioner otherwise than in court proceedings (e.g. by issuing a 'garnishee' notice to a 3rd party under s 260-5 of Schedule 1 to the TAA or by applying a credit or refund due to the director) - the director provides information to the Commissioner within 60 days of receiving from the Commissioner a copy of the s 260-5 notice or written notice that he has recovered any of the penalty (as applicable) and the Commissioner is satisfied of the relevant matters on the basis of that information.

The requirement to provide all necessary information within 60-days places a very high onus on the director in non-court proceedings.

The 60-day period is said to be consistent with the standard objection period. However, there are a number of differences - for example, it is not usually necessary to provide all supporting information when lodging the objection, nor is the objection automatically disallowed if all information is not provided with the objection. Unlike for objections, there is no provision for extension of time to provide the information, nor are there appeal rights if the Commissioner disallows the defence.

DP notice

The Commissioner can now give a copy of the DP notice to the director's registered tax agent as notified to the Commissioner. This is an additional means of bringing the notice to the directors' attention, intended to alleviate the problem of directors not receiving the DP notice before expiry of the 21-day period for compliance. However, the period still runs from when the actual notice is posted, regardless of when or whether it (or the copy) is received by the director. The Government did, however, decide not to proceed with the proposal to 'automate' recovery of DP by enabling the Commissioner to recover after 3 months without issuing a notice.

New 'PAYG withholding non-compliance tax' (PWNCT)

This is applicable to relevant directors and their associates and is discussed further below.

PAYG withholding non-compliance tax

The PWNCT provisions are in new Subdivision 18-D of Schedule 1 to the TAA. It applies to directors and 'associates' of directors. This tax effectively reverses the economic benefit of credits for the director or associate in respect of PAYG amounts withheld from payments by the company to them where the company has an unpaid PAYG withholding liability in respect of the income year. It is intended as a further incentive for directors (and their associates) to ensure the company pays its PAYG withholding amounts.

PWNCT applies to an individual who:

  • Was a director of the company on the day by which the company was required to pay the withholding amounts to the Commissioner (payment day or non-compliance day), where the company did not do so; or
  • Became a director (new director) of the company after the payment day, if they are still a director, and the company has not paid the amounts, at the end of 30 days after they became a director; or
  • Was an associate of a director on the payment day; or
  • Was an associate of a new director when they became a director and throughout the 30-day period after that time.

An 'associate' of a natural person is broadly defined, extending beyond the director's immediate family and including an individual who is in a partnership with the director.9 It is not necessary for the associate to be actively involved in the company's finances but the Commissioner must be satisfied that either:

  • Due to the associate's relationship with the director or the company, they knew or could reasonably be expected to have known that the company had failed to pay the amounts and the associate did not take reasonable steps to influence the director to cause the company to notify or pay the withheld amounts to the Commissioner or put the company into administration or liquidation and did not report the non-payment to the Commissioner or other relevant authority (e.g. the Minister, police, ASIC); or
  • The associate was treated more favourably by the company than other employees (e.g. the associate was paid higher wages for the same work or continued to receive their entitlements while others did not or where there was income-splitting among associates).

It is, however, important to remember that PWNCT is only relevant for associates who are employed by (or who receive other relevant entitlements from) the company. This is more likely to be the case in private family companies but is not limited to those companies.

Defences of non-participation in management for good reason and reasonable steps are available to directors, which mirror the DP defences.

The amount of tax is the lesser of the total amounts withheld from payments by the company to the individual during the income year and the company's unpaid liability in respect of PAYG withholding from all payments made during the year. It is due and payable at the earliest time when the individual's income tax for the year is due and payable. Directors and associates have rights of indemnity and contribution against other directors (but not against associates).

The Commissioner cannot commence proceedings to recover PWNCT from an individual unless he gives written notice to the individual after the non-compliance day. He may only issue a notice if he is satisfied, on the basis of available information, that it is fair and reasonable for the individual to be liable for PWNCT. He cannot give notice if the relevant director is liable to pay a DP because the company has not complied with its obligation to pay the withheld amount. Time limits apply to the issue of PWNCT notices (unlike DP notices).

If the company's liability is discharged to any extent after the Commissioner has given notice of the PWNCT liability, the individual is entitled to a credit if the Commissioner gives them written notice specifying the amount of the credit (which must be determined by the Commissioner on a fair and reasonable basis).

Section 588FGA of the Corporations Act

Section 588FGA of the Corporations Act

Directors should also be aware of section 588FGA of the Corporations Act. This provides that directors are liable to indemnify the Commissioner in respect of any loss or damage suffered by the Commissioner as a result of an order by the Court against him under s 588FF (in relation to voidable transactions) in respect of a PAYG withholding amount or SGC estimate paid to him. Thus, if a director causes the company to pay a PAYG withholding or SGC liability to the Commissioner (which may be the only way of escaping personal liability for a DP if the 3-month period has elapsed), that payment may be a voidable preference if the company is insolvent and the director may end up with personal liability to the Commissioner for the amount under s 588FGA. In short, the director could end up with a personal liability even if the company pays.

Comments

The DP provisions clearly have much wider application than to 'phoenix' activity. The DP provisions apply to all directors (except where they can rely on one of the limited defences and satisfy the onerous proof and information requirements). This includes: innocent directors (DP is not limited to culpable directors who were personally involved in the corporate breach), non-executive directors, new directors (who became directors after the due date), former directors (who were in office at the time of the relevant event but ceased to be directors by the due date) and de facto directors.

Very short time frames are given, for example: 7 days to contest an estimate of liability, 21 days for directors to comply with their obligation after receiving a DP notice, 60 days to provide information to rely on a defence outside court proceedings and 3 months to prevent liability by putting the company into administration or liquidation.

The focus of the provisions is apparently now on deterrence and collection rather than on having the company put into insolvency administration. Particular issues and difficulties arise in relation to SGC, given the greater complexities of the SG legislation and more contentious issues that arise, compared to the PAYG withholding provisions.

The application of the new PWNCT to associates of directors is particularly harsh, given the broad definition of an 'associate' and that it is not necessary that they were involved in the company's affairs or that they actually knew that the company did not meet its obligations. An associate can be liable (if they are an employee of the company) even if the director has a defence. The DP changes are inconsistent with the reforms regarding directors' liability for corporate acts resulting from the a project undertaken by the Council of Australian Governments and the proposed Personal Liability Corporate Reform Bill 2012 (which removes provisions in Commonwealth legislation providing personal liability for directors and other company officers, including some in tax legislation). In contrast, the new DP regime significantly expands the scope of personal liability of directors for the relevant company tax debts. The new rules could have some undesirable long term ramifications, such as: causing directors to favour payment of the ATO over other creditors (giving the ATO de facto priority for these debts), causing companies to be pushed prematurely into external administration or liquidation or causing more insolvent trading (once the remedy of administration or liquidation is not available to directors) and discouraging people from becoming directors. It might also be asked whether the DP changes are the 'thin edge of the wedge' of imposing personal liability on directors for corporate tax.

Implications for directors

Directors face a significantly increased risk of personal liability to the ATO under the new provisions. Given the potential consequences for them (and possibly their associates) if the company does not comply with its obligations to pay PAYG withholding and SG amounts, the limited defences available and the short time frames provided, directors will need to be increasingly vigilant to ensure the company is meeting these obligations. In particular, directors will need to:

  • Closely monitor the company's financial and tax compliance status;
  • Regularly review the company's tax compliance systems and processes;
  • Conduct due diligence on these matters before becoming a director of the company;
  • Take prompt action when it becomes apparent that the company may not be paying or able to meet its PAYG withholding and SG liabilities;
  • Ensure the company at least notifies the withheld amounts to the Commissioner (preserving the remedy of administration or liquidation);

Directors cannot simply rely on the advice of management or the finance team and must undertake their own investigations. If a director detects a problem, however, they should obtain prompt legal advice.


1 The priority for tax debts generally had been removed some 2 decades earlier. However, debt for SGC has priorityover ordinary unsecured creditors, ranking equally with employees' entitlements under s 556(1)(e) of the Corporations Act.
2 In November 2009, the then Assistant Treasurer said the ATO estimated that suspected phoenix cases posed arisk to the revenue in the order of $600 million.
3 Taxation Laws Amendment (2012 Measures No. 2) Act 2012and PAYG Withholding Non-Compliance Tax Act 2012.
4 Division 268 provides that the Commissioner may estimatetheunpaid & overdueamount of a liability to pay withholding amounts or SGC (to the extent the SGC is not already assessed). The company is liable to pay the amount of the estimate (regardless of whether it is accurate). This liability is separate and distinct from the underlying liability and is due & payable when notice of the estimate is given. The Commissioner can (but is not obliged to) reduce or revoke an estimate at any time. A company can only require an estimate to be reduced or revoked by giving the Commissioner a statutory declaration or affidavit verifying relevant matters within 7 days of receiving the estimate notice (or such longer period as the Commissioner allows).
5 This includes a liability to pay an estimate under Division 268 of Schedule 1 to the TAA, which provides that the Commissioner may estimatetheunpaid & overdueamount of a liability to pay withholding amounts or SGC (to the extent the SGC is not already assessed). The company is liable to pay the amount of the estimate (regardless of whether it is accurate). This liability is separate and distinct from the underlying liability and is due & payable when notice of the estimate is given. The Commissioner can (but is not obliged to) reduce or revoke an estimate at any time. A company can only require an estimate to be reduced or revoked by giving the Commissioner a statutory declaration or affidavit verifying relevant matters within 7 days of receiving the estimate notice (or such longer period as Commissioner allows).
6 ATO Practice Statement PS LA 2011/16
7 In ATO Practice Statement PS LA 2012/2 the ATO says that any directorof a corporate trustee in officeat any time between the withholding date and the due date who fails to meet the obligations and any new director who fails to meet their obligations within 30 days after their appointment would be liable for DP. Presumably, any DP for unpaid SGC applies to directors of the trustee in office at the end of the quarter to which the SGC liability relates who have not discharged their obligation by the time for lodging the SG statement for that quarter.
8 'Reasonably arguable' is defined in s 284-10 of Schedule 1 to the TAA as meaning that it would be concluded in the circumstances, having regard to relevant authorities, that what is argued for is about as likely to be correct as incorrect, or more likely to be correct than incorrect.
9 It should be noted that a 'partnership' for tax purposes also includes the joint receipt of income (even if there is not a partnership at general law).
Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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