Priority Debts – ░░░ INSOLVENCY INTERFACE

Australian Building Systems case: nuanced ATO view of decision

Capital Gains Tax, CGT, Corporate Insolvency, Insolvency Law, Insolvency practices, Priority Debts, Tax debts, Tax liabilities, Taxation Issues Comments Off

Feb 072016

On 6 January 2016 the ATO issued a Decision Impact Statement concerning the High Court judgment in the Australian Building Systems case.

[See my previous post for a discussion of the High Court’s majority decision: Australian Building Systems case: plenty of common sense in the dissenting judgment by Justice Michelle Gordon]

It seems that although the ATO accepts the High Court’s majority decision (as, of course, it must), it’s interpretation of the decision is nuanced, and suggests that it has no intention of giving up on the retention obligation.

Australian Building Systems case: plenty of common sense in the dissenting judgment by Justice Michelle Gordon

Capital Gains Tax, Corporate Insolvency, court decisions, Insolvency Law, Priority Debts, Tax debts, Taxation Issues Comments Off

Dec 172015

(Judgment of December 2015)

By a majority of three to two the High Court dismissed the Australian Taxation Office’s appeal in the Australian Building Systems case: Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation); Commissioner of Taxation v Muller and Dunn as Liquidators of Australian Building Systems Pty Ltd (In Liquidation) [2015] HCA 48 (10 December 2015) .

This test case – run by the Australian Restructuring Insolvency & Turnaround Association (ARITA) and the Australian Taxation Office (ATO) – began in 2013 and has previously been before the Federal Court and the Federal Court of Appeal. It was supposed to settle a far-reaching, long-standing argument that ARITA and the ATO had been having since 2009.

Argument about when obligation arises

The primary argument in this case – framed here as an issue for liquidators in general – has been whether the “retention obligation” placed on liquidators by section 254(1)(d) of the Income Tax Assessment Act 1936 arises prior to the issue of a tax assessment or only after the issue of an assessment.
Continue reading »

Tax Office loses High Court appeal in test case regarding liquidators’ tax obligations

Capital Gains Tax, Corporate Insolvency, Priority Debts, Returns, Tax liabilities, Taxation Issues Comments Off

Dec 102015

A High Court decision was been delivered today (10/12/2015) in the long-running test case of the Commissioner of Taxation v Australian Building Systems Pty Ltd. The following is the summary of the judgment published by the High Court. (The full judgment will be found HERE.)

H I G H C O U R T O F A U S T R ALI A

COMMISSIONER OF TAXATION v AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION); COMMISSIONER OF TAXATION v MULLER AND DUNN AS LIQUIDATORS OF AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION) [2015] HCA 48

Today the High Court, by majority, dismissed appeals from the Full Court of the Federal Court of Australia. The High Court held that the retention obligation (as defined below) imposed on agents and trustees by s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth) (“the 1936 Act”) only arises after the making of an assessment or deemed assessment in respect of the income, profits or gains. Continue reading »

More talk about phoenixing of insolvent companies

Corporate Insolvency, Employee Entitlements, External administration, External administrators, Personal Bankruptcy, Phoenix company activity, Practitioners Association (ARITA), White collar crime Comments Off

Nov 122015

Transcripts have now been published for all of the public hearings of the Senate inquiry into insolvencies in construction industry. Phoenixing of companies is the main topic discussed. Several insolvency practitioners have given evidence, and at the hearing in Sydney on 28th September the insolvency profession was criticised by the leading participant, Senator Doug Cameron. At the public hearing in Melbourne on 29th September the Walton Constructions case was discussed in detail by the insolvency practitioners initially appointed as external administrators.

A list of the public hearings and those who appeared as witnesses is provided below. Continue reading »

Government funding of liquidators expanded

Assetless companies, Corporate Insolvency, Employee Entitlements, External administration, Priority Debts, Voidable transactions Comments Off

Jul 062015

(6 July 2015) From 1 July 2015 the Australian Government’s Department of Employment will accept applications from liquidators for funding under its Fair Entitlements Guarantee programme. The following is a copy of the FACT SHEET for the Fair Entitlements Guarantee Recovery Programme.

A division of the Australian Government Department of Employment

Fair Entitlements Guarantee Recovery Programme

This fact sheet provides information for liquidators about the Fair Entitlements Guarantee (FEG) Recovery Programme which aims to improve the recovery of employment entitlements advanced under FEG.

The FEG Recovery Programme

FEG provides financial assistance for unpaid employment entitlements to eligible employees who have lost their jobs due to the liquidation or bankruptcy of their employers. Once entitlements are paid under FEG, the Commonwealth stands in the shoes of the employee as a subrogated creditor and is entitled to claim in the liquidation and is given priority over other unsecured creditors under the Corporations Act 2001 (Cth).

The FEG Recovery Programme is administered by the Department of Employment (‘Department’) with the purpose of funding actions that will improve recovery of amounts advanced under FEG.

Under the FEG Recovery Programme funding may be provided to liquidators to enable recovery efforts, including legal proceedings, which the liquidators would not otherwise have the financial resources to pursue.

How to apply

Actions that the Department may consider funding include, but are not limited to:

voidable transaction claims, such as unfair preferences and uncommercial transactions;
insolvent trading claims;
transactions entered into with the intention to avoid employment entitlements; and
claims against receivers and secured creditors for failure to pay employment entitlements.

Liquidators of insolvent entities where employment entitlements have been paid under FEG can apply for funding assistance where:

they are aware of one or more claims that might be brought, on behalf of the company, against any person or persons; and
those claims have reasonable prospects of success and, if successfully prosecuted, will result in the company recovering property that will improve the return for employment entitlements.

Applications for funding assistance can be made by completing the Funding Application Form available on the FEG website and returning:

by email to: FEGRecovery@employment.gov.au
by post to: Fair Entitlements Guarantee Branch Department of Employment GPO Box 9880 CANBERRA ACT 2601

Considerations

When determining whether to provide funding, the Department will have regard to:

the merits, prospects of success and risks of the proposed action;
the complexity of the proposed action and its likely duration;
the total costs that are likely to be incurred, compared to the admitted value of the Department’s proof of debt and the scope for improved recovery;
the availability of favourable evidence;
whether the proposed defendant or defendants have sufficient assets to satisfy an adverse judgment; and
whether sufficient information has been provided, as part of the initial application or in response to a request for further information, to enable the Department to make its funding decision.

If your application is accepted, you will be required to enter into a funding agreement with the Department. The funding agreement will govern what the Department will pay for and how monies recovered are to be applied.

A draft of the funding agreement will be provided to you if your application is accepted. The Department will not be liable to pay any amounts until the funding agreement has been executed and will only provide funding in accordance with the funding agreement.

Want more information?

You can contact the FEG Hotline if you would like more information about the FEG Recovery Programme:

by phone on: 1300 135 040
by email to: FEGRecovery@employment.gov.au

If you speak a language other than English, call the Translating and Interpreting Service (TIS) on 13 14 50 for free help anytime.

Further information about FEG is also available on the FEG website (www.employment.gov.au/FEG).

The information contained in this fact sheet is not legal advice. Where necessary, you should seek your own independent legal advice relevant to your particular circumstances. The Commonwealth is not liable for any loss resulting from any action taken or reliance made by you on the information contained in this factsheet. Updated: June 2015

Compelling first day at inquiry into construction industry insolvencies

Assetless companies, Corporate Insolvency, Debt Administration, Employee Entitlements, Insolvency Statistics, Official Inquiries, Phoenix company activity, Regulation, White collar crime Comments Off

Jun 192015

(19/6/2015) A lively public hearing before the Senate Committee looking into insolvency in the Australian construction industry has been told by several speakers that sub-contractors should be protected by requiring head contractors to place money in trust funds. The Committee also heard about debt collection methods, outlaw bikie gangs and new allegations concerning events leading up to the collapse of Walton Construction in October 2013.

Those appearing before the Committee on 12 June 2015 included Mr Dave Noonan, National Secretary of the Construction and General Division, Construction, Forestry, Mining and Energy Union (CFMEU), representatives of the Subcontractors Alliance, Project Resources, Masonry Contractors Association of NSW, EcoClassic Group Pty Ltd and Erincole Building Services Pty Ltd.

MORE TO COME: At the close of the day Senator Cameron said: “Chair, there might be other issues once we have a look at the Hansard. We might need to get some of this group back again further on. This inquiry is going to run for a bit of time yet, so we will need to have a look, see what you said and come back.”

The official Hansard transcript of the hearing on 12 June 2015 was recently published on the Parliament’s website. A PDF copy of the 56 page transcript may be downloaded from that site by clicking here.

Tax Office wins right to appeal in test case regarding liquidators’ tax obligations

Capital Gains Tax, CGT, Corporate Insolvency, Insolvency Law, Insolvency practices, Priority Debts, Taxation Issues Comments Off

Apr 272015

{UPDATE 10/12/2015: The ATO lost in the High Court case. See my post of 10/12/2015.}

On 17 April 2015 the High Court granted special leave for the Australian Taxation Office to appeal the decision by the Full Federal Court in the Australian Building Systems case.

Previously … The liquidators of Australian Building Systems Pty Ltd disposed of company property for a capital gain. The Commissioner of Taxation claimed that the liquidators were required to retain funds from the sale proceeds to pay tax arising from the gain. The Federal Court (21/2/2014) and the Full Federal Court (8/10/2014) rejected the Commissioner’s position, holding that the payment and retention obligations in s 254 of the Income Tax Assessment Act arose only when a notice of assessment was issued by the Commissioner.

Commenting on the High Court’s grant of leave to appeal against those decisions of the Federal Court, David Pratley of Minter Ellison, Lawyers, says:

“Regrettably, the tax obligations of insolvency practitioners will continue to be uncertain for some time. It will likely be at least 12 months before the High Court hands down its decision on the appeal. If the appeal is allowed it would generally have retrospective application. Hence practitioners that rely on the Full Federal Court decision in releasing funds could be exposed to the risk of personal liability.”

Extracts from the transcript of the application for special leave

Below are extracts I have made from the High Court transcript number [2015] HCATrans 082. CLICK HERE to see full transcript. The application for special leave to appeal was before KIEFEL J and KEANE J. The full name of the case is : Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation); Commissioner of Taxation v Ginette Dawn Muller and Joanne Emily Dunn as Liquidators of Australian Building Systems Pty Ltd (In Liquidation) [2015] HCATrans 82 (17 April 2015)
_________________________________________________________

MR J T GLEESON, SC (representing the Commissioner of Taxation):

…. So, in practical terms, a commissioner contends that if the liquidator sells a block of land on a certain date in the year for, let us say, a $10 million gain, the section requires the liquidator as a trustee to ensure that sufficient moneys remain in his or her hands to meet the tax when it is assessed at some future point. The obligation cuts in because the gain has been derived and it has its particular force at the time the liquidator is contemplating paying away money from the fund. So, in the example I have given, assuming they were the only facts known to the liquidator and the corporate tax rate was 30 per cent, the liquidator before making distributions to creditors or contributories would always make sure $3 million remained in the bank to pay the tax.

KIEFEL J: Do you say the obligation arises upon the receipt on each occasion of income or each transaction by which profit or gain is – – –

MR GLEESON: Yes, it arises because the derivation under paragraph (a), which is treated as being a derivation by the trustee or agent, and he thereby is bound under the obligation for the very good purpose that the whole point is so that the money remains there rather than the liquidator pay it away and then, when an assessment is later issued, the Commissioner would have to try and chase the creditors or the contributories.

….

KIEFEL J: What do you say – I think you have dealt with this in your reply – to the respondents’ argument that your construction leads to difficult results about how the liquidator has to estimate exact amounts?

MR GLEESON: It may or may not require attention by the liquidator to those questions. If it does, that does not call for any different construction, because the point of being a liquidator or a trustee or an agent, by taking on that responsibility the Act has placed upon you the duty to sufficiently inform yourself of the circumstances of the trust estate or the principal’s affairs with which you are acting in a representative capacity.

What the liquidator does – I have given a simple example where the liquidator says, “I must keep $3 million back from the creditors”, and if later on in the year there are further transactions on the tax account which the liquidator has information which might adjust the amount that he or she needs to keep, he or she makes an adjustment. But the critical thing is, the purpose of it is, do not pay away the money which needs to be there to make sure the Commissioner can recover the tax. By taking on the duty of trustee or agent you take on a statutory responsibility to ensure that is done. May it please the Court.

__________________________________________________

MR S DOYLE, QC (representing the liquidators of Australian Building Systems Pty Ltd Acn 094 238 678 (In Liquidation)):

….

The respondent’s contention is “due” there means payable and our learned friend’s contention is that it means “owing” and it turns therefore on the question of whether there need be or need not be an assessment.

The construction for which the respondent contends, we would submit, is plainly right. It is required by the language of 254(1)(d), which speaks of a sum which is due but, more importantly, of a sum which will become due, not as the case against us requires that it be understood as if it might become due because our learned friend’s capital gain tax case is a good example upon the sale for a capital gain one can postulate that tax might become due, one cannot say that tax will become due without having regard to the totality of the affairs of the principal, the underlying taxpayer.

Additionally, the construction for which we contend gives defined content to the obligation to retain sufficient to pay because it is only when there is an assessment that one can know what that figure is. Our learned friend says against us that a liquidator has an obligation to understand the affairs of the company or a trustee has an obligation to understand the estate assets. This is not a question of diligence. This is a question of certainty. There is a defined obligation which requires one to be able to say, what is the sum sufficient to pay for the tax? The construction for which the respondent contends – which was favoured below – permits that to occur; the opposite construction does not.

KIEFEL J: Are you saying that the liquidator should only be required to be in a position to understand the overall obligations to pay tax on behalf of the company for the whole year rather than it being considered on a transactional basis?

MR DOYLE: It can only be when there is an assessment made. Assuming there are other affairs of the company within that period, it is only when there is an assessment issue that one can say that there is tax which will become due and that gives definition to the content of the obligation to retain a sum sufficient to pay it. It also gives content to – I hope I have answered your Honour’s question.

….

MR DOYLE:

…. To answer your Honour Justice Keane’s question, it is right to say the liquidator conducts the affairs of the company and has the obligation to put the tax return in. But our learned friend’s contention is the content of the obligation to withhold the money from the principal and to retain it under relevantly (d) and (e) arises long before that is done – arises at the moment of each receipt as it was put to you. That requires one to be able to say, the statute imposes a definable obligation on someone to withhold – as is the case here – a sum sufficient to pay the tax due upon a sale which gives rise to a capital gain in circumstances where there is no sum which can be defined as the tax due, or will become due, because of the other uncertainties which will influence the amount, if any, of tax which will become due.

That is, in our submission, the real difficulty with the case which is put by the applicant. It requires you to be able to say that when a liquidator makes a sale at a capital gain, he is obliged to do something to retain that money – that is, obliged by the Tax Act – forgetting his obligations as a liquidator – obliged by the Tax Act to do something with that money in circumstances where it is not possible to say how much. It is not possible to say there will, in fact, be tax due because subsequent events may mean there is no tax due.

….

KIEFEL J: Yes, there will be a grant of special leave in this matter. The Court notes the Commission is undertaking to pay the respondent’s costs, regardless of the outcome in this matter. The parties should obtain a copy of the directions for the filing of submissions with respect to this matter and, of course, to adhere strictly to the timetable there set out. Time estimate? No more than a day? ….

_____________________________________________________

Links to previous post about tax on this blog site:

“Post-appointment income tax debts of liquidator” – 10 October 2010
“Taxing capital gains made during liquidation” – 15 October 2010
“Legal opinion warns external administrators about personal liability for company taxes” – 16 November 2010
“Decision only partly resolves tax puzzle for liquidators” – 7 March 2014
“ATO appeals against decision in Australian Building Sysytems case” – 19 March 2014
“Tax Office loses to liquidators in test case regarding tax obligations” – 10 October 2014

ATO appeals against decision in Australian Building Systems case

Capital Gains Tax, CGT, Corporate Insolvency, court decisions, Insolvency Law, Practitioners Association (IPAA), Priority Debts, Returns, Tax debts, Tax liabilities, Taxation Issues Comments Off

Mar 192014

The Australian Restructuring Insolvency & Turnaround Association (ARITA) reported yesterday that the Australian Taxation Office is appealing against the decision in the test case on the obligations of liquidators upon the occurrence of a Capital Gains Tax (CGT) event.

Hand objection

ARITA’s report is as follows:

CGT UNCERTAINTY by Kim Arnold, 18/3/2014

Further to our recent article on the decision in Australian Building Systems Pty Ltd v Commissioner of Taxation [2014] FCA 116, the ATO have lodged an appeal. The grounds of the appeal are that:

the judge erred in concluding that the liquidators were not required under s254(1)(d) of the Income Tax Assessment Act 1936 to retain proceeds from sale sufficient to pay any net capital gain arising from the sale; and

the judge erred in concluding that the obligation to retain monies sufficient to pay any tax in respect of the sale only arises when and if an assessment is issued.

The ATO’s view is that there is an obligation for the liquidators to retain proceeds from sale sufficient to meet any tax obligation and that an assessment is not required for that obligation to arise.

The issue of CGT priority and external administrator obligations on the sale of assets in insolvency administrations has been outstanding for many years and it seems that there will be no certainty for some time to come.

For my earlier post on this subject CLICK HERE.

Decision only partly resolves tax puzzle for liquidators

Capital Gains Tax, Case Reports, CGT, Corporate Insolvency, court decisions, Insolvency Law, Insolvency practices, law reports, Priority Debts, Returns, Tax debts, Tax liabilities, Taxation Issues Comments Off

Mar 072014

[UPDATE 19/3/2014: THE ATO HAS APPEALED AGAINST THE DECISION DISCUSSED IN THIS POST] [UPDATE 10/10/2014: THE ATO FAILED IN ITS APPEAL; THE DECISION OF LOGAN J WAS CONFIRMED.]

When the Insolvency Practitioners Association of Australia (since renamed the Australian Restructuring Insolvency & Turnaround Association, or ARITA) and the Australian Taxation Office (ATO) decided to run a test case on the obligations of liquidators upon the occurrence of a Capital Gains Tax (CGT) event, they probably knew they risked broadening the contentious issues. But they had to try settling a far-reaching and long-standing argument which ARITA and the ATO had been having since 2009. (1)

Unfortunately for ARITA and the ATO, the Court decided not to adjudicate in one important area, deeming it “unnecessary to answer in light of the conclusion reached …”

In running Australian Building Systems Pty Ltd v Commissioner of Taxation ([2014] FCA 116), decisions were sought on the following questions:

– whether the liquidators (this was a joint appointment) are obliged by s 254 of the Income Tax Assessment Act 1936 , prior to the issuing of a notice of assessment to Australian Building Systems Pty Ltd (ABS), to retain monies so as to meet what may be a taxation liability in respect of the income year when the CGT event occurred; and

– whether the liquidators are obliged to pay to the Commissioner the whole of any tax due by ABS in priority to other creditors of that company notwithstanding ss 501, 555 and 556 of the Corporations Act.

Tax law gavel

On the first question the Court – Logan J presiding – concluded:

“ … that s 254 of the ITAA36 had no application to the liquidators. They were not, in the absence of any assessment, subject to any retention and payment obligation derived from that section…..” (para 25 of the judgment) and “s 254 does not require retention upon the mere happening of a CGT event …” (para 31).

As the ATO had argued that it was not necessary for there to be a notice of assessment before the retention obligation of S. 254 could arise, this decision was a victory for the liquidators.

But Logan J added the following cautionary advice:

“… Even though, for the reasons given, s 254 does not require retention upon the mere happening of a CGT event, that does not mean that a liquidator is obliged immediately to distribute the resultant gain or part thereof as a dividend to creditors in the course of the winding up. A prudent liquidator, like a prudent trustee of a trust estate or executor of a will, would be entitled to retain the gain for a time against other expenses which might arise in the course of the administration. Further, in relation to income tax, the liquidator would at the very least be entitled to retain the gain until the income tax position in respect of the tax year in which the CGT event had occurred had become certain by the issuing of an assessment or other advice from the Commissioner that, for example, no tax was payable in respect of that income year….” (para 31).

Caution-taxes

ATO back to the drawing board

The ATO will need to withdraw its exhaustive Draft Taxation Determinations TD 2012/D7 and TD 2012/D6 of September 2012 and try again to state the correct legal position. In those determinations the ATO took the view that

“a receiver who is an agent of the debtor is required by paragraph 254(1)(d) of the ITAA 1936 to retain from the sale proceeds that come to them in the capacity of agent sufficient money to pay tax which is or will become due as a result of disposing of a CGT asset”; and
“The phrase ‘tax which is or will become due’ in paragraph 254(1)(d) of the ITAA 1936 is not restricted to tax that has been assessed, and includes tax that will become due when an assessment is made. Consequently, the obligation to retain an amount under paragraph 254(1)(d) can arise in respect of tax that has not yet been assessed”.

An advisory note from ARITA?

One can imagine that the decision and the words of caution by Logan J will eventually find their way into an advisory note or practice guide from ARITA to liquidators and other insolvency practitioners. But in getting there the Judge’s caution is bound to cause ARITA’s technical advisers and members considerable trouble.

ARITA’s initial interpretation

ARITA posted a summary of the judgment on its website on 23 February (“Liquidator succeeds in CGT dispute with ATO” by Michael Murray), and ended with a note that it will closely examine the decision and the Judge’s comments and will raise the matter at its next liaison meeting with the ATO.

ARITA’s interpretation included the following comment:

“ In the case in hand, no assessment had issued when the sale took place. This means that there is no personal liability for a liquidator if, once the assessment issues, there are insufficient funds to meet the liability. “

Kicking off the discussion

I would make a couple of preliminary observations regarding this comment.

First, the fact that no assessment had issued when the sale took place is unremarkable. Normally, a tax assessment is not made until after an event occurs. Ordinarily, the ATO would not even be aware that an event had occurred until it was disclosed in a return lodged by the taxpayer. (2)

Secondly, I agree that, based on this decision, there would be no personal liability under s. 254(1)(d) or (e) of the ITAA 1936 for the tax payable as the result of a profit, etc., if the money the liquidator had was expended and/or disbursed before a tax assessment was issued.

But there are other important issues to consider. If a tax return covering
a post-appointment period was lodged and/or a tax assessment was issued showing tax payable in respect of that period, this would give rise to a debt payable by the company; and that debt would, it seems to me, be entitled to priority payment under the Corporation Act, as are other costs
of the winding up.

Such a tax debt would probably be entitled to classification as an expense “properly incurred by a relevant authority” (e.g., a liquidator) (S. 556(1)(dd) of the Corporations Act). If so, it would have a higher priority than, for example, liquidator’s remuneration (S. 556(1)(de)) and employee entitlements (S. 556(1)(e) and (g)).

So … if, when the assessment issues “there are insufficient funds to meet the liability”, the liquidator may be deemed to have breached his or her duty to distribute the proceeds in accordance with the priorities established by law.

It seems to me that this very issue was the one being broached by Logan J in his caution at para 31 of the judgment when he said:

“ … in relation to income tax, the liquidator would at the very least be entitled to retain the gain until the income tax position in respect of the tax year in which the CGT event had occurred had become certain by the issuing of an assessment or other advice from the Commissioner that, for example, no tax was payable in respect of that income year….”.

_______________________________________________

NOTES:

(1) In October 2012 the ATO issued draft rulings on the subject; and in February 2013 the hearing of the test case began.

(2) In the case being examined here, the ATO was informed of the CGT event when the company sought a private ruling from the Commissioner on whether s.254(1)(d) applied.

_______________________________________________

For more on this topic see my article “Post-appointment income tax debts of liquidator” published on this site on 10 October 2010.

Targeting phoenix activity: union asks Senate for tougher laws and action

ASIC, Australian Senate 2013-14, Corporate Insolvency, Employee Entitlements, Official Inquiries, Phoenix company activity, Regulation, White collar crime Comments Off

Oct 252013

The Australian Manufacturing Workers’ Union (AMWU) has focused its recent submission to the inquiry by the Australian Senate into “The performance of the Australian Securities and Investments Commission” on the issue of phoenix company activity.

The AMWU claims that “ASIC’s failure to adequately hold directors to account has cost millions of dollars worth of unpaid entitlements for employees nationwide. The time is now for action to be taken, impunity to end, and for unscrupulous directors to be held accountable.”

The AMWU submission (21 October 2013) makes four recommendations, namely:

1) Increasing resources and funding to ASIC so that it can properly investigate corporate misbehaviour.

2) A comprehensive review and amendment of s 596AB of the Corporations Act to provide stronger safeguards for employee entitlements and allow for more successful actions by ASIC and liquidators.

3) Introducing a reverse onus procedure by which a director, where there has been an adverse liquidators’ report lodged against them, will be required to ensure that they have acted honestly and responsibly in relation to company affairs.

4) Increasing ASIC’s legislative powers to hold directors and officers personally responsible for unpaid employee entitlements, with a particular focus on phoenix activity.

In expanding on and explaining these recommendations the AMWU says:

1) “ASIC is under-resourced to handle the thousands of complaints submitted to it every year. Regardless of what legislative or regulatory reforms are undertaken, without additionally funding, ASIC will not be able to protect the interests of even the most vulnerable of parties, such as employees. There needs to be a commitment to replace impunity with accountability, and increased resources and funding to ASIC must be the driving force behind this.”

2) “The intention behind s 596AB was to “deter the misuse of company structures … to avoid the payment of amounts to employees that they are entitled to prove for on liquidation of their employer”. This intention has not materialised. Instead, the criticism that s 596AB will prove to be a “toothless tiger… so hard to prove that nobody will be effectively prosecuted” has been proven true. This recommendation would allow for ASIC to, more easily, bring proceedings against directors who have compromised employee entitlements through corporate restructures. This would have a threefold effect of protecting employee entitlements, holding dishonest directors to account, and deterring similar conduct.”

3) “This recommendation is modelled upon Irish legislation under the Companies Act 1990 (Ireland) s 149. In Ireland, where an adverse liquidators’ report has been lodged, directors must ensure that a large amount of equity capital is invested in the new company (at least £100 000 with a minimum of £20 000 paid up in cash) or are required to prove in court why they should not be required to do so. This reverse onus procedure would reduce the detection and compliance burden on ASIC.”

4) “The AMWU submits that continued review of the anti-phoenix activity measures implemented be undertaken, especially in light of the first anniversary of the enactment of the Corporations Amendment (Phoenixing and Other Measures) Act 2012 (Cth).”

In support of its submission the AMWU gives its summary of the following recent cases:

• Steel Tube Pipe Group
• Forgecast Australia Pty Ltd (AMWU v Beynon [2013] FCA 390)
• Carlton Sheet Metal Pty Ltd
• Huon Corporation
• Paragon Printing Ltd

The inquiry by the Senate Standing Committee on Economics began on 20 June 2013. Submissions were to close on 21 October 2013. The Committee is due to report by 31 March 2014.

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