An evaluation of Australia's director penalty regime

Abstract

This article considers the Commissioner’s role as a creditor in a corporate insolvency with respect to the director penalty regime under Div 269 to Sch 1 of the Taxation Administration Act 1953 (Cth) (TAA 1953). The provisions within this Division concern the obligation of directors to cause the company to meet its pay-as-you-go withholding (PAYG withholding) and superannuation guarantee charge (SGC) liabilities and the consequent obligation imposed on directors to cause the corporation to take certain steps. Directors who fail to meet these obligations will face personal liability, subject to certain defences. In particular, this article will consider whether the director penalty regime satisfies the recognised tax policy criteria of achieving fiscal adequacy as well as achieving the socio-economic criteria of efficiency, equity and simplicity.