Director Penalty Notices issued by the ATO
What is a Director Penalty Notice?
When a company fails to meet its obligations under the Taxation Administration Act 1953 (‘TAA’), by failing to (i) pay PAYG amounts withheld by the company from employee salaries, (ii) superannuation amounts, (iii) GST, (iv) Wine Equalisation Tax (WET) or (v) Luxury Car Tax (LCT), the Commissioner of Taxation may issue a penalty notice to each of the directors of the company for the amount not remitted to the Commissioner. A director therefore has a personal liability in these circumstances arising from Division 269 of Schedule 1 to the TAA.
Several scenarios have caused great difficulty for many directors including:
Who is considered to be a director under the Director Penalty Notice regime?
A Director Penalty Notice (‘DPN’) from the Australian Taxation Office (‘ATO’) may be issued to all directors of companies, including de facto directors and shadow directors.
Who is a de facto director?
A person who is not validly appointed as a director, but who acts in the position of director will be a de facto director of a company. A person may be considered to be a de facto director if they exercise (for example) top level of management functions, because outsiders would have perceived their role as a director (eg. they were described as a consultant but their duties were that of a director), the person was a signatory on a bank account, or because they held themselves out as a director. A de facto director could include; a former director, a person disqualified as a director or a person who was not validly appointed as a director.
Who is a shadow director?
If the appointed board of directors are accustomed to act in accordance with the instructions or wishes of a person, then this person may be considered to be a shadow director. The purpose of the law is to identify persons with real influence over the corporate affairs of the company, however, this does not extend to the company’s professional advisers such as lawyers and accountants.
How do I know if I may be a de facto or shadow director?
The facts of any situation must be considered as a whole to ascertain whether a power to control was exercised by the de facto or shadow director. Relevant factors will include the specific duties carried out by the person, size of the company, internal practices and structure of the company. Each case is different and care must be taken in considering all the relevant issues. Examples where a person may be alleged to be a shadow director include; where the person was authorised to sign cheques for the company, where the registered directors act on the instructions of a person, or where the person is doing the work of a director.
Do I need to respond to the ATO about a DPN I have received?
Yes. When a DPN is received, you need to take steps to advise the Commissioner in writing of any defences you have. There are statutory time limits imposed under the Taxation Administration Act 1953 (Cth) for disclosing information which concerns a defence to a DPN. A failure to respond to the ATO will have serious consequences for protecting your legal rights against the ATO in relation to the personal liability which you are alleged to have in connection with a company’s failure to pay (for example) any PAYG amounts and superannuation.
What can a director do to protect themselves?
There is often no single strategy which will ensure a director can avoid a penalty arising or limit the size of the penalty, however, directors can take proactive and practical steps such as:
What can you do if you receive a director penalty notice?
The Australian Taxation Office is taking an increasingly aggressive approach to non-compliance by companies. A director can seek to avoid or limit any penalty amount by: