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REPORT AS TO AFFAIRS (RATA) Report On Company Activities and Property (ROCAP) CORPORATIONS - EXTERNAL ADMINISTRATION |
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Last updated 12/10/2018 | |
REVISION
On 1 October 2018 the Australian Securities and Investments Commission (ASIC) released a draft of a new Report as to Affairs (commonly known as a RATA). A copy of this form, which includes detailed instructions, came be downloaded from HERE.
The new name is to be Report On Company
Activities and Property (ROCAP).
In releasing the draft - in an issue of
ASIC Corporate Insolvency Update - ASIC said:
"ASIC’s project to launch a revised RATA (now
ROCAP - Report On Company Activities and Property) is nearing an end after
an extensive process including law reform and industry consultation. It
reflects ‘best practice’ forms design and use of behavioural design tools to
ensure you receive better information to help you do your job. We’ve shared
our work with AFSA as it reviews the Statement of Affairs. ASIC intends releasing the ROCAP in November 2018....
"
The announcement went on to to state "How will the ROCAP benefit me?" ("me" being the external administrator) and "What do I need to do now?"
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FRAMEWORK OF PROPOSED ROCAP
The following is my preliminary analysis of the draft.
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The draft report is 50 pages long and comprises four parts:
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Part A (also referred to as Form 507) (5 pages);
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Statement veryfying Report under s475(1) (1 page);
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Part B (8 pages); and
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Instructions for Part A and Part B (36 pages).
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Part A (Form 507):
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This Part goes on "the public record" maintained by ASIC.
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Requires general information from the external administrator and a declaration by the external administrator.
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Requires general information from the company dirctor (questions A1 to A8) and a declaration.
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Questions to the director are about debts owing by the company, debts owing to the company and assets owned by the company. None of the questions ask for the amounts involved, but they do ask that details be supplied as attachments.
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For each question to the director there is a corresponding instruction in the final part of the form (see above).
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With most questions there is a requirement to read the instruction and provide an attachment.
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The instructions set out the requirements for each attachment.
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The instructions have examples/precedents of/for many of the required attachments.
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The attachments to Part A (and hence the detailed information shown therein) will be go "on the public record". The instructions state: "The information you provide on PAGES 3 to 5 of PART A (FORM 507) will be available on the public record maintained by ASIC".
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There is no requirement that directors produce a summary financial statement showing the company's net position in figures, i.e., showing the company's net assets, net liabilities and the resulting deficiency or surplus. This is a significant departure from the existing RATA Form 507, which requires, and is centred around, such a financial statement at pages 3 and 4.
***
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Part B:
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Part B begins with a note: "Do not lodge Part B with ASIC".
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This part is similar to the questionnaires that most external administrators have, for many years, been sending to directors as a "good practice" and as an enforceable requirement of directors.
-
Each page of this part begins with this statement: "Your answers to questions on this page will be available only to the external administrator".
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Questions cover matters such as company management, payments to directors, preferential payments, records maintained, location of records and financial statements, company history, real property leases, disposals of assets, transactions with related entities, and payment arrangements.
-
For each question there is a corresponding instruction in the final part of the form.
-
The instructions have examples/precedents of how to answer certain questions and how to prepare certain attachments. They also explain/define some unfamiliar terms.
-
Instructions for Part A (Form 507) and Part B:
-
These comprise general instructions ("Read these before you start"), Part A instructions and
Part B instructions. Notes in the earlier sections of this post describe what is in the instructions.
*** The removal of the director's financial statement is a change that I support, having made the case for it when I was consulted by ASIC. In my submission I suggested: "We should do away with the requirement that the RATA imposes, in summary pages 3 and 4, to estimate the amount that may be available to creditors. This information/estimate is best left to the liquidator to calculate once he or she has examined the RATA . It can be conveyed to creditors in a report by the liquidator...."
.........................................
The draft report is 50 pages long and comprises four parts:
-
Part A (also referred to as Form 507) (5 pages);
-
Statement veryfying Report under s475(1) (1 page);
-
Part B (8 pages); and
-
Instructions for Part A and Part B (36 pages).
Part A (Form 507):
-
This Part goes on "the public record" maintained by ASIC.
-
Requires general information from the external administrator and a declaration by the external administrator.
-
Requires general information from the company dirctor (questions A1 to A8) and a declaration.
-
Questions to the director are about debts owing by the company, debts owing to the company and assets owned by the company. None of the questions ask for the amounts involved, but they do ask that details be supplied as attachments.
-
For each question to the director there is a corresponding instruction in the final part of the form (see above).
-
With most questions there is a requirement to read the instruction and provide an attachment.
-
The instructions set out the requirements for each attachment.
-
The instructions have examples/precedents of/for many of the required attachments.
-
The attachments to Part A (and hence the detailed information shown therein) will be go "on the public record". The instructions state: "The information you provide on PAGES 3 to 5 of PART A (FORM 507) will be available on the public record maintained by ASIC".
-
There is no requirement that directors produce a summary financial statement showing the company's net position in figures, i.e., showing the company's net assets, net liabilities and the resulting deficiency or surplus. This is a significant departure from the existing RATA Form 507, which requires, and is centred around, such a financial statement at pages 3 and 4. ***
Part B:
-
Part B begins with a note: "Do not lodge Part B with ASIC".
-
This part is similar to the questionnaires that most external administrators have, for many years, been sending to directors as a "good practice" and as an enforceable requirement of directors.
-
Each page of this part begins with this statement: "Your answers to questions on this page will be available only to the external administrator".
-
Questions cover matters such as company management, payments to directors, preferential payments, records maintained, location of records and financial statements, company history, real property leases, disposals of assets, transactions with related entities, and payment arrangements.
-
For each question there is a corresponding instruction in the final part of the form.
-
The instructions have examples/precedents of how to answer certain questions and how to prepare certain attachments. They also explain/define some unfamiliar terms.
Instructions for Part A (Form 507) and Part B:
-
These comprise general instructions ("Read these before you start"), Part A instructions and Part B instructions. Notes in the earlier sections of this post describe what is in the instructions.
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