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Don’t think you can get away with it! 

Insolvency Law News | October 2013

As our readers would be aware, the outstanding tax liability of a company for unpaid PAYG and superannuation guarantee contributions can be imposed on a director of the company as a personal liability.  

Donna Gee, a sole director of a company AJG Capital Pty. Limited. paid money to the ATO from AJG’s account, for the outstanding tax liability of a related company. AJG then went into liquidation.  The liquidator of AJG sought to claw back the amount paid by Ms. Gee to the ATO as an “unreasonable director related transaction” as the payment was made by AJG to the ATO for the benefit of Ms. Gee as a director of the related comany, to avoid the ATO pursuing her personally for the tax liability of the related company. In this case (David Allan Ingram as Liquidator of AJG Capital Pty. Limited [in liqn] v. Donna Jean Gee [2013]), the liquidator was required to show the court that the payment from AJG must have been a direct benefit to the director as the director of the related comany: s. 588FE(6A) of the Corporations Act. The Act provides that such a transaction is voidable against a liquidator if it is unreasonable on the facts and made by a director during the 4 years ending on the day which is deemed to be the commencement of the winding up of AJG. It is not necessary in these cases to establish that the company from where the payment was drawn was insolvent when the payment was made.

Annette Fontana and Andrew Lozynsky at Forum Law have a strong background in insolvency law advising liquidators and external administrators as well as directors and creditors. If you have any concerns or enquiries about the solvency of your business or others with whom you are dealing then contact us at Forum Law.

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