In April 2022, the ATO began writing to batches of company directors in relation to unpaid liabilities informing them about the risk of their personal liability for unpaid company tax debts. If not actioned, directors are at risk of receiving a Director Penalty Notice (DPN).
These letters pre-DPN will continue to be sent to directors of companies if that company has not met its obligations for all or either of PAYG withholding tax, Superannuation Guarantee Charges (SGC) and GST. So far, approximately 80,000 of these letters have been sent out.
The letters notify the directors that the ATO is assessing whether to issue them with a DPN; which if issued, would make the director personally liable for the unpaid debts of their business if the company does not provide evidence that it is actively managing the outstanding debt/s.
The idea of issuing directors with this letter is to ensure that they are aware of their obligations to ensure the company’s liabilities are paid and the actions the ATO will take if they do not comply.
While the letter may seem daunting to some; on one view, the ATO is providing an opportunity for the directors to work with it and avoid escalation.
That said, the ATO has already issued more than 50,000 DPNs since 1 June 2022.
Outgoing and newly appointed directors
DPNs may be issued to a director who has resigned but was a director at the time that the unpaid debts were incurred.
DPNs may also be issued to new directors who have been acting in that capacity for more than 30 days.
The two types of DPNs
There are two types of DPNs:
1. The first is a 21 day DPN which is also referred to a as a ‘Non-lockdown DPN’ where the director receives a warning after which they have 21 days to act to avoid liability.
A Director will be issued with a Non-lockdown DPN if:
- the business activity statements (BAS) were lodged within 3 months of being due;
- the SGC statements were lodged within 1 month and 28 days after the end of the quarter that the amounts due relate to; and
- the company has not paid the relevant amounts outstanding.
After receiving this 21 Day DPN; to avoid personal liability for the debt/s, the director can:
- pay the debt;
- appoint a Small Business Restructuring Practitioner, which may be an option for companies with a total ATO debt of under $1 million
- place the company into voluntary administration or take steps to wind up the company
2. The second type is a Lockdown DPN which serves the director with an automatic personal liability notice. It is effective as soon as the ATO serves it on the director.
A director will be issued with a Lockdown DPN if the company has not:
- met its obligations for PAYG
- paid its SGC obligations
- lodged the company tax returns within three months of the due date
With a Lockdown DPN, the director’s personal liability can only be avoided if the debt is paid.
Defences to a DPN
A company’s director will have a defence to a claim by the ATO under a DPN if they can establish that the relevant debt was not paid due to one of the following reasons:
- an illness or another acceptable reason
- all reasonable steps were taken by the director to pay the outstanding PAYG or GST
- all reasonable steps were taken to appoint a voluntary administrator or wind up the company
- all reasonable steps were taken to ensure that the company complied with its obligations to pay the outstanding debt/s
- the director was not in control of the company at the time the debt/s arose
Non-Compliance with a DPN
Directors may become personally liable to repay the company’s debts if they do not comply with the DPN and the ATO may seek to recover the unpaid amounts directly from the director and/or recover the amount subject of the DPN from the realisation of the director’s personal assets.
Avoidance of DPNs and recovery action
The ATO has announced that it wants to work with taxpayers about unpaid debts and work to resolve the debt rather than take enforcements action so:
- if you have received a ‘Pre-DPN’ notice, DO NOT ignore it and seek advice immediately;
- similarly, if you have received a DPN, seek advice as soon as possible to avoid recovery action against your personal assets.
We are here to help
If you require further information, please contact Rohan Harris (Sydney), Nahum Ayliffe (Melbourne), Walter MacCallum (Sydney), Rory Maguire (Melbourne), Joe Denina (Sydney), Suzanne Rieschieck (Melbourne), Chantal Reigo (Melbourne) or a member of our Dispute Resolution team or Corporate and Commercial team.
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