Insolvency Law Reform

Details of recent changes

There have been some high profile changes to Insolvency Law in 2012 that advisers, and company directors should be aware of. The most notable change expands the reach of the ATO’s Director Penalty Regime

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Tax Laws Amendment (2012 Measures No. 2) Bill 2012

These changes to the Tax Office’s power to chase company directors for their company’s tax debt have been before parliament for some time. Originally introduced in May 2011 the government withdrew the first draft to seek further industry consultation. This version was introduced for public consultation in April 2012, went before Parliament in June and became law on 29 June 2012

The headline changes are:

• The ATO can now issue a Director Penalty Notice for Superannuation Guarantee (SG) amounts as well as Pay As You Go withheld (PAYG);
• If PAYG and SG amounts remain unpaid and unreported three months after the due date, directors are automatically personally liable for these debts and cannot cause their director penalties to be remitted by placing their company into administration or liquidation; and
• The ATO can restrict access to PAYG withholding credits for company directors and their associates where the company has failed to pay withheld amounts to the Commissioner of Taxation.

The three month reporting deadline (part (b) above) is the big news in our opinion. This change has made a lot of company directors automatically liable for retrospective debts with no hope of avoiding a penalty through a liquidation. Our advice if you or your client finds themselves in this situation is still to put the company into liquidation. Our feeling is the ATO are under resourced to enforce these new powers to their full potential and that a company already in liquidation will be their lowest priority.

Corporation Amendment (Phoenixing and other measures) Bill 2012

On the 26th of May 2012 the Corporation Amendment (Phoenixing and other measures) Bill 2012 became law. Amongst smaller changes this Act gives the regulator the power to appoint a liquidator to abandoned companies to facilitate payment of employee entitlements (most likely under the government’s FEG scheme).

They have since released a Consultation paper detailing how and when they use these powers. The paper indicates they will only be appointing a liquidator if; the cost of the liquidation is lower than the value of employee entitlements, and when they are sure they have waited long enough to give other creditors a chance to initiate a liquidation. It sounds to us like they will rarely exercise this power, and once they do it will be 18 months to 2 years after the company is abandoned.