With the property boom around Australia reaching record heights, the construction industry has similarly increased exponentially. However, statistics from the Australian Securities and Investments Commission (AISC) show that with increased expansion comes increased failure. These statistics show that of all Australian companies going into external administration, around 20% are within the building and construction industry. This article will explore some of the reasons for insolvency in the construction and issues involved.

Recently, the Australian Restructuring Insolvency and Turnaround Association, of which Partner Jonathan Paul McLeod is a Professional member, released a comprehensive analysis of some major issues surrounding ambiguity of garnishees in voluntary administration (VA).  This article will seek to explore some of the issues raised surrounding ATO garnishees.

A Director Penalty Notice (DPN) is an official notice from the ATO regarding outstanding payments. Under various acts of legislation, the ATO has the authority to collect outstanding payments, which are those amounts deducted under the PAYG provisions or unpaid Superannuation. The way in which this occurs is by making directors liable for these charges with a ‘penalty’ equal to the unpaid amount.

Over the past year, a number of major Australian businesses have been in the press following announcements of voluntary administration, bringing issues of insolvency to the forefront of public discussion. However, it can be confusing and tricky to understand what and how much a voluntary administrator is able to achieve.

Each year as the number of companies entering external administration continues to climb, unfair preference deals with the ATO are being made which may land directors in hot water.

In essence, an unfair preference deal is a payment made to the ATO for outstanding tax liabilities, essentially discriminating one creditor at the expense of another. Often when this deal is made with the ATO, it can be seen as a good solution, as it provides the company room to move in terms of cash-flow. However, this short term fix can end in the Director potentially facing personal liability if the company becomes insolvent.