The Federal Government’s ongoing commitment to reign in illegal phoenixing has received a further boost with the Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019 being introduced to Parliament on 14th February 2019. The Bill addresses two specific issues:
introduces phoenixing offences to creditor - defecting dispositions of property and penalise those who engage or facilitate such dispositions and allows liquidators and ASIC to recover such property;
directors are held accountable for misconduct by preventing directors from improperly back dating resignations or ceasing to be a director in circumstances where the company would then have no directors;
it allows the Deputy Commissioner of Taxation to collect estimates of anticipated GST liabilities and make company directors personally liable for their company’s GST liabilities in certain circumstances. This Bill in relation to GST adopts the directors penalty regime presently placed in respect of PAYG withholding.
In essence, as with the PAYG withholding and superannuation liabilities for which directors can be personally liable, if on receipt of a director’s penalty notice a director does not within the statutory 21 days place the company in voluntary administration or commence a liquidation, subject to the debt being no older than 3 months, then the director will be personally liable for that debt subject to defences.