Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES  

Note: See section 3AA .

Chapter 4 - Generic assessment, collection and recovery rules  

PART 4-15 - COLLECTION AND RECOVERY OF TAX-RELATED LIABILITIES AND OTHER AMOUNTS  

Division 269 - Penalties for directors of non-complying companies  

Subdivision 269-B - Obligations and penalties  

SECTION 269-35   DEFENCES  

Illness

269-35(1)  


You are not liable to a penalty under this Division if, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:


(a) you were a director of the company; and


(b) the directors were under the relevant obligations under subsection 269-15(1) .

All reasonable steps

269-35(2)  


You are not liable to a penalty under this Division if:


(a) you took all reasonable steps to ensure that one of the following happened:


(i) the directors caused the company to comply with its obligation;

(ii) the directors caused an administrator of the company to be appointed under section 436A , 436B or 436C of the Corporations Act 2001 ;

(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or


(b) there were no reasonable steps you could have taken to ensure that any of those things happened.

269-35(3)  


In determining what are reasonable steps for the purposes of subsection (2), have regard to:


(a) when, and for how long, you were a director and took part in the management of the company; and


(b) all other relevant circumstances.

269-35(3AA)  


If the obligation referred to in subparagraph (2)(a)(i) is an obligation to pay an amount of an estimate of an underlying liability under Division 268 , that reference to an obligation includes a reference to the obligation to pay the underlying liability.

269-35(3AB)  
For the purposes of subsection (3AA), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15 .

Superannuation guarantee charge and assessed net amounts - reasonably arguable position

269-35(3A)  


You are not liable to a penalty under this Division to the extent that the penalty resulted from the company treating the Superannuation Guarantee (Administration) Act 1992 or the *GST Act as applying to a matter or identical matters in a particular way that was * reasonably arguable, if the company took reasonable care in connection with applying that Act to the matter or matters. When you can rely on this section

269-35(4)  


For the purposes of:


(a) proceedings in a court to recover from you a penalty payable under this Division; or


(b) proceedings in a court against you in relation to a right referred to in paragraph 269-45(2)(b) (directors jointly and severally liable as guarantors);

subsection (1) or (2) of this section does not apply unless you prove the matters mentioned in that subsection.

269-35(4A)  


For the purpose of the Commissioner recovering from you a penalty payable under this Division (other than as mentioned in subsection (4)), subsection (1) or (2) does not apply unless:


(a) you provide information to the Commissioner during the period of 60 days starting on the day the Commissioner:


(i) in the case of the Commissioner recovering the penalty under section 260-5 (Commissioner may collect amounts from third party) - gives you a notice under subsection 260-5(6) in relation to the penalty; or

(ii) otherwise - notifies you in writing that he or she has recovered any of the penalty; and


(b) the Commissioner is satisfied of the matters mentioned in subsection (1) or (2) of this section on the basis of that information.

Power of courts to grant relief

269-35(5)  
Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.




This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.