Australian Directors Become Personally Liable for Unpaid Superannuation
The Australian government has extended provisions regarding penalties for directors. The new director penalty regime makes directors personally liable in case their company fails to make certain compulsory payments or superannuation payments like tax withholding from employees' wages.
- (1888PressRelease) February 12, 2013 - The Australian government has extended provisions regarding penalties for directors. The new director penalty regime makes directors personally liable in case their company fails to make certain compulsory payments or superannuation payments like tax withholding from employees' wages. The amendments are introduced to decrease the possibility of intentional fraud by directors, 'phoenix' activity, wherein a director accumulates debts in name of the company, liquidates the company before paying the debts, and then forms a new debt-free business entity or avoids payment of the entitled payments to employees.
New Director Penalty Regime: Highlights
• The director penalty regime and the estimates regime have been extended to apply to unpaid superannuation payments.
• Under the new regime, directors will not be able to discharge their liabilities by voluntarily placing companies into administration or liquidation, if superannuation is unpaid or any amount withheld is unpaid and unreported 3 months after the due date.
• If a business entity does not pay amounts withheld to the Commissioner, directors and their associates may be made liable.
• The Commissioner now has wider scope to pursue directors for breaching obligations.
• If the concerned liability is not paid and is unreported for 3 months after the due date, directors automatically become liable to pay the amount, and the liability cannot be remitted by placing the company into administration or liquidation.
New Director Penalty Regime: Implication
• The new regime is anticipated to protect employees' entitlements, discourage directors from fraudulent phoenix activities and improve the regulatory environment for compliant taxable entities.
• It must be noted that new directors may become liable for penalties, when there is an obligation giving rise to a director penalty, 30 days after the date of the director's appointment; the director is still under that obligation. New directors will not be subject to the restricted remission options until 3 months after being appointed as director of the company, not depending on period the company has been liable for the debt.
• Therefore, any person accepting new appointments as a director, in Australian companies should be aware of these implications and make sure they study the latest tax and due diligence reports of the company.
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