Garnish*

* Verb
1 decorate or embellish
2 serve notice on a 3rd party to seize money  

A garnishee notice is served on a third party that owes you money (or holds money on your behalf), requiring that the third party pays some or all of that money direct to the entity issuing the notice.  In recent years it has increasingly become one of the ATO’s favourite weapons to enforce the payment of outstanding tax debts.

This can include the diversion of wages owed to you by your employer, the contents of your bank accounts, proceeds of sale held by a property settlement agent or amounts owed by trade debtors.

Unlike your average creditor, the ATO does not need to seek a court order to issue and enforce a garnishee notice.  You do need to be served with a copy of the notice.

If you are in the process of a court or AAT appeal in which you are disputing the assessment under which you owe the tax debt, then the ATO is required to consider whether garnishing funds would prejudice your ability to pursue the appeal.  Recent case law suggests that this assessment by the ATO is at times open to challenge, as the taxpayer (and the Courts) may not always agree with the ATO’s assessment as to what will or will not prejudice the taxpayer’s capacity to address their tax appeal.  We have also seen cases where garnishee notices have been improperly issued against joint bank accounts concerning individual debts – so the issue of a notice is not always the end of the story.  Call us if you would like any further help in addressing a garnishee notice.

Cove Legal are experts in assisting clients with contentious tax matters and insolvency proceedings.  We provide advice on ATO payment plans, director penalty notices, winders and all other aspects of ATO debt recovery action.  Practice Director Roger Blow has acted extensively on behalf of the ATO in Perth and has specific expertise in tax related disputes. 

Roger Blow

P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

WA Company goes into Administration

This week saw another significant WA company, RCR Tomlinson, placed into the hands of Administrators.  https://www.perthnow.com.au/business/contracting/engineering-firm-rcr-tomlinson-collapses-appoints-administrators-ng-b881028755z

According to recent ASIC figures 2,182 companies across Australia entered into external administration between July to September 2018, a 4.5% increase on the same period in 2017.

The statistics also identify that roughly one third of companies are found to have traded insolvent for over 2 years prior to the appointment of an external administrator.  Of most concern is the current rate of 92% of liquidations resulting in nil dividends for unsecured creditors and less than 1% achieving more than 50c in the dollar.

Those statistics need to be considered against the backdrop of more aggressive collection strategies from the ATO, with an increase in the use of garnishee notices, Director Penalty Notices and seeking security over personal director assets before entering into payment plans for company tax debts.

Cove Legal provide specialist advice to clients facing possible insolvency outcomes or facing actual or threatened ATO debt action.  If you are attempting to address director personal liability issues, director penalty notices, garnishee orders, winding up applications, statutory demands or need advice on an insolvency situation generally, speak to us today as we would love to try and help. 

#garnishee #DPN #directorliability

Channel 7 vs Amber Harrison: when PR should sometimes trump the law

The latest Court offering served up by the long running and very public legal dispute between Amber Harrison and Channel 7 serves as a timely reminder that sometimes technically correct (and indeed in this case successful) legal actions should still not be pursued for the sake of a company's reputation and wider commercial interests. 

As you may recall, Ms Harrison had a very public liaison dangereuse with one of her former colleagues, the CEO of Channel 7 Tim Worner.  That affair became the subject of a settlement agreement between Harrison and Ch7 which Harrison alleged was breached by Ch7 (including the failure to pay agreed sums of money) and that Ch7 alleged Harrison breached by failing to comply with confidentiality provisions.  Ch7 then obtained a very widespread 'gagging order' from the Court preventing Harrison from saying anything publicly about Ch7.

Ch7 Executives, no doubt relying on the extensive gagging order, then came out swinging, in public, against Harrison.  The plan back-fired.  Harrison refused to be gagged whilst being publicly attacked, and responded in kind.

Fast forward to this week, and we have the Supreme Court finding that whilst Harrison clearly breached the Court gagging order and needs to be found guilty of contempt, there appears to be no other penalty or punishment imposed and no costs ordered in favour of the Ch7 shareholders.  Even more damaging for Ch7, the judgment also overtly displays substantial sympathy for Harrison's position, and Justice Pembroke repeatedly stresses that the Court was required to find her guilty of contempt, whilst setting out at length in the Judgement all of the circumstances that led Harrison to respond in the manner that she did.  Reading between the lines, it was a bad strategic call by Ch7. 

And that is perhaps the take away: whilst technically Harrison was gagged and unable to respond to the public attacks levelled at her by the Ch7 Executives, such events are, at least initially, played out in the public domain well before they darken the door of any Courtroom.  The general public will not accept or fully understand the legal intricacies involved in a gagging orders or contempt proceedings and are merely going to see a lone female employee going toe to toe with a large and very well resourced company.  In a media/PR sense, it is never going to be a fair fight and Ch7 needed to recognise that, regardless of the weight of its legal argument.  The decision to then bring contempt proceedings was highly unlikely to bring any commercial or PR benefit to Ch7, but they still pressed the button.  Its a great example of where a legal argument or position needs to be strategically viewed in the wider commercial context - otherwise you may just be headed for a very expensive (if not damaging) pyrrhic victory.

What to do if you have been served a Director Penalty Notice by the ATO?

If you are a Director of a company and your PAYG and Superannuation Guarantee Charge Obligations are not up to date, you could find yourself the subject of an ATO Director Penalty Notice (DPN) and incur personally liability for those outstanding debts.   

The ATO issues DPNs as part of its debt recovery actions and once issued you have 21 days to either: 

1. cause the Company to pay the debt (or pay it yourself); or

2. appoint a voluntary administrator; or

3. put the Company into liquidation.

A failure to comply within 21 days will automatically make you personally liable for the unpaid super/PAYG, subject to the limited defences discussed below. 

You should also be aware that if the company’s BAS returns are more than 3 months old, the serving of the DPN can give rise to personal liability for the directors for Company tax debts EVEN IF they then put the company into liquidation or voluntary administration within the 21 day period. 

Where no returns have been lodged, the ATO can undertake an audit and simply issue an estimate of the debt and then issue a DPN based on that estimate, so a failure to report does not necessarily provide any protection to personal liability. 

Under the legislation a director cannot avoid liability under a DPN by claiming they did not receive it – the ATO merely needs to prove that it was properly posted by normal post to evidence receipt. 

There are some limited defences to liability arising under a DPN.  A Director is not personally liable if they can prove: 

1. they were not capable of acting as a Director of the company during the relevant period that the debts arose and were not paid due to sickness or some other good reason;

2. they took all reasonable steps to ensure that:

   • the directors caused the company to comply with its obligations;

   • the directors caused an administrator of the company to be appointed;

   • the directors caused the company to begin to be wound up, and

   • there were no reasonable steps that could have been taken to ensure that any of the above happened.

Whether a course of action is 'reasonable' and whether there is sufficient evidence to support the argument will vary on a case-by-case basis and requires advice. 

Cove Legal are experts in assisting our clients with contentious tax matters and insolvency proceedings and provide advice on ATO payment plans and all other aspects of ATO debt recovery action.  Roger Blow acted extensively for the ATO in Perth for over 5 years and has specific expertise in tax related disputes.   

If you would like advice or assistance with any legal matters involving the ATO, we would be keen to hear from you.   Please contact: 

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.