War Story: DPN – Director moved house?

Update the ASIC register ASAP to avoid embarrassment

November 15, 2018

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Most accountants are aware of the ins and outs of Director Penalty Notices – lockdown versus non-lockdown DPNs, lodgement timeframes, new directors etc. If you could do with a refresher on DPNs, click here.

What I want to share with you is a story about a director who moved house – let’s call him Fred – and a simple issue that caused a lot of grief.

Fred, like most directors, suspected that important correspondence pertaining to his company would be issued to its registered office (i.e. your office, the Tax Agent).

So when Fred moved house, he didn’t bother to tell his accountant about the shift. Why should he have to? All company related correspondence would be issued to his accountant, right?

Wrong.

Given the personal nature of a DPN, they are issued to a director’s personal address as recorded on the Company’s Australian Securities & Investments Commission’s corporate register. The legislation is very clear on that point.

Some months after the move, when Fred was relaxing in his new digs, he received the daunting news that he had been previously issued with a DPN and what was worse, that it was long expired, making him personally liable for his company’s unpaid PAYG-w.

When Fred ran the matter past his accountant, he was shocked to learn about the address for service provisions of the DPN regime. And embarrassingly for his accountant, who had been sending his invoices to his client’s new address, was scrambling for cover.

The lesson here is for accountants and Tax Agents to regularly check in with their clients regarding changes of personal address. Build it in as part of your periodic client reviews and catch ups.

We haven’t seen it yet, but we are sure the day will come when a client sues his or her accountant for not maintaining a company’s statutory details correctly at the ASIC register.

Generally, it is not unusual even if the director’s address details are correct, for a DPN to go unopened for the full 21 day notice period, resulting, in the case of a non-lockdown DPN, personal liability at the expiry of that period.

We have encountered circumstances where family members have inadvertently filed correspondence from the ATO containing a DPN in expectation of it containing ‘routine’ information, only to discover its true contents at a later time.

The critical point is that directors should open any correspondence received from the ATO, regardless of what they may perceive to be its contents.

Importantly for all Tax Agents, if a client changes their residential address, it is important that the change is reflected at ASIC.

And finally, remind your clients that if they receive a letter from the ATO – to open it promptly and take immediate action if its contents is a DPN.

About the author

Greg Quin is a Director at HLB Mann Judd Insolvency WA and has been with the team for nearly 10 years. Greg oversees the daily operations of the many insolvency appointment managed by the team and looks after the operations of the practice.

If you have any queries about DPNs, or any other insolvency matters, please feel free to contact Greg on 08 9215 7900, 0402 943 091 or via email to gquin@hlbinsol.com.au.

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