In some circumstances, company directors may be held personally liable for company debt. Such circumstances include where a company owes monies to the ATO under the Pay As You Go withholding system (PAYG) and/or pursuant to its Superannuation Guarantee Charge obligations (SGC).
In the event a company fails to pay any amount of PAYG and/or SGC by its due date, the company’s directors immediately become personally liable for a penalty equal to the amount of tax payable. At this point, the ATO may elect to issue a Director Penalty Notice (DPN) to the company director(s).
The non-compliance with a DPN attracts severe consequences for the director. If the DPN is not complied with within 21 days of it being issued, the ATO may commence court proceedings against the director in for the amount of the penalty. If court proceedings are commenced, unless one of the statutory defences is available (very rare), there is little prospect of successfully raising a defence.
While it may seem trite, company directors should be aware of the below tips in the context of DPNs:
- Know your PAYG and SGC obligations
The best way to avoid being tied up with DPN-related issues as a result of the company’s non-compliance, is to be educated regarding the company’s underlying obligations. The ATO website offers an overview of the PAYG and SGC systems. If the company is just getting started, seek specialist taxation advice to ensure its accounting processes are structured appropriately. Procedures should also be in place to regularly review the company’s PAYG and SGC obligations and adapt to any changes to same.
- Be proactive with lodgements
The consequences of failure to comply with PAYG and SGC obligations (to both the company and its director(s) personally) can be catastrophic. Delegate the time to ensure the company is making the necessary lodgements with (and payments to) the ATO, within the applicable timeframes. If the company has a bookkeeper or its own accounts department, regularly meet with them to ensure ATO lodgements are up to date. Do not presume that merely because PAYG and SGC lodgements fall under someone else’s job description, they are being performed as required.
- Properly monitor the company’s financial position
Company directors are of course under a range of duties with respect to the company’s financial position and record-keeping. A company director should at all times be familiar with the company’s financial position and performance.
If it becomes apparent that the company is unable to meet its PAYG and SGC obligations, legal advice should be sought immediately.
- Keep ASIC updated
Finally, company directors should always ensure that their most up to date contact details are registered with ASIC, and that arrangements are in place for the regular receipt of any mail to their registered address(es). A DPN will be sent to the address listed on the ASIC register as the director’s address. Even if a director no longer resides at the address listed with ASIC, a DPN will nevertheless be deemed issued on the date it was sent to that address (kicking off the 21 day period for its compliance).
- If you do happen to be issued with a DPN, do not ignore it.
It will not simply ‘go away’. DPNs require urgent action and legal advice should be sought immediately if one is received.