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Decision Impact Statement

Eaton, Stuart; Eaton, Kristine and Jones, Glynn

Venue: New South Wales Court of Appeal
Venue Reference No: 40911; 40912 and 40913 of 2004
Judge Name: Handley, Hodgson and Santow
Judgment date: 19 October 2006
Appeals on foot:
No.

Administrative Treatment (Implication on current Public Rulings and Determinations)

Relevant Rulings/Determinations:

Subject References:
Whether director liability under 222AOC of the ITAA extinguished by Deed of Company Arrangement
Jurisdiction of the District Court of New South Wales
Whether it is unfair to enforce judgment on the basis that it had been obtained against each of three directors for the same amount.

This document is not a public ruling, but provides a statement of the Commissioner's position in relation to the decision and how the law will be administered as a consequence of the decision. Any proposals for changes in the law are matters for government and it is not appropriate for the Commissioner to comment.

Précis

The appellant taxpayers argued that a Deed of Company Arrangement extinguishes a director penalty liability for the purposes of section 222AOH of the Income Tax Assessment Act 1936 (ITAA 1936).

Brief Summary of Facts -

1.

 The Applicants were directors of Lofeze P/L ("the Company").

2.

 On 11 July 2002, the ATO issued a director penalty notice ("DPN") pursuant to section 222AOE of the ITAA 1936 to each director in relation to unremitted group taxes between December 2000 - June 2001.

3.

 The notice required the directors to do one of four things within 14 days of receipt: namely, pay the amount; enter into an agreement under section 222ALA ITAA 1936; put the company into administration; or put the company into liquidation.

4.

 The directors did not comply with the notice by the due date (26 July 2002) and as a consequence, the Commissioner was able to take recovery action for the penalty amount.

5.

 On 17 July 2003, that is, after the expiration of the date specified in the DPN, the company entered into voluntary administration and subsequently a Deed of Company Arrangement was approved by creditors. The Deed of Company Arrangement provided that a payment of $51,000 to all creditors would release the company from all of its debts.

6.

 The amount of $51,000 was less than the amount payable under the DPN.

Issues decided by the Court or Tribunal

1. Whether a Deed of Company Arrangement extinguishes the DPN penalty?

Answer: No

The Court rejected the contention that a payment under the terms of the Deed of Company Arrangement had the effect of discharging the DPN penalty.

Section 222AOH of the ITAA 36 refers to amounts being "paid" or "applied" to the Commissioner. If an amount is paid or applied towards a DPN liability, then any payments made can be used to reduce or discharge the liability of any director who is sued for the same liability. Here, the $51,000 was paid under the terms of the Deed of Company Arrangement. There was no evidence that any amount was paid to the Deputy Commissioner of Taxation (DCT). In addition, the Court found that a discharge must mean a release, or extinction by the fulfilment, performance, execution of an obligation, duty, function etc: Commissioner of Taxation v Orica Limited [1998] 94 CLR 500.

2. Whether the District Court has jurisdiction to hear tax recovery matters?

Answer: Yes

The Court referred to the NSW Court of Appeal's decision in Forsyth v DCT which had already dealt with the jurisdiction issue.

3. Whether the DCT was entitled to enter judgement against each of three directors in the same amount or whether it was so unfair as to preclude the DCT from enforcing any such judgement.

The Court stated that the DCT was entitled to enter judgement against each of three directors and therefore there was no abuse of process in the DCT obtaining a separate judgment against each of three directors for the same amount, as it enabled the DCT to proceed against any one or more of the directors. This reflected the legislature's intention that directors be jointly and severally liable for penalties in these circumstances.

Tax Office view of Decision

The decision confirms the Commissioner's view that a Deed of Company Arrangement cannot be used as a mechanism for directors to avoid the operation of the director penalty provisions contained in Part VI, Division 9, Subdivision A of the Income Tax Assessment Act 1936 and that the DCT is able to enter judgment against more than one director for the same amount.

Administrative Treatment

Implications on Law Administration Practice Statements

None

Your comments

We invite you to advise us if you feel this decision has consequences we have not identified, or if a precedential decision such as a Public Ruling or an ATO ID requires reconsideration or amendment. Please forward your comments to the contact officer.

Date Issued:	2 July 2007
Due Date:	27 August 2007
Contact officer:	Grahame Tanna
Email address:	grahame.tanna@ato.gov.au
Telephone:	(02) 9374 2674
Facsimile:	(02) 9374 8977
Address:	100 Market Street Sydney

Legislative References:
District Court Act 1973
44(1)(a)
83A

Income Tax Assessment Act 1936
160M(3)
Part VI, Division 9, Subdivision A
222ALA
222AOB
222AOC(1)
222AOG
222AOH
222AOI

Case References:
Forsyth v. Deputy Commissioner of Taxation
(2002) 62 NSWLR 132
2005 ATC 4025
58 ATR 179

Stewart v. DCT
(1997) 38 ATR 26

DCT v. Harrington (Walmsley DCJ) (No.9568/01)
1 October 2003 unreported

Commissioner v. Orica Limited
[1998] 94 CLR 500
98 ATC 4494
39 ATR 66