Commercial decisions must be made by company directors, and many times these decisions involve some degree of risk. While the distinction between entrepreneurial freedom and delinquent corporate behaviour will be clear cut for most company directors, there are nevertheless circumstances where these lines can blur, resulting in sometimes substantial, and sometimes unexpected, personal exposure.
RISKS AND LIABILITIES
The corporate regulator, the Australian Securities and Investments Commission (ASIC), says failing to perform your duties as a director can, in the more extreme cases, lead to being found guilty of a criminal offence with a penalty of up to a maximum of $200,000, or imprisonment for up to five years, or both.
ASIC gives an example of how a company director may be asked by a bank to give a mortgage over their house to secure the company’s repayment of a loan. If the company does not repay the loan as agreed with the bank, the director will be held liable (and risks losing their house).
Another liability, for example, is that one’s obligations as a director continue even after a company has ceased trading. Under certain circumstances, a director can still be held personally liable for ongoing debts and other losses even after the business has stopped operating.
Further, there are the tax obligations for PAYG withholding and superannuation guarantee charge payments, which are outlined under the Tax Office’s “director penalty regime”.
The Tax Office recommends that directors get up to speed on what is expected of them. It says one good source is ASIC’s Guide for Small Business Directors. Contact this office for more information.
ASIC has found small business company directors continually need to be reminded that a company is its own entity, and has a distinct legal existence that is separate from that of its owner, manager, operator, employees and agents.
A company has its own property, and its own rights and obligations. A company’s money and assets belong only to that company and must be used for the company’s purposes. But it also has the powers of an individual, including the power to:
- own and dispose of property and other assets
- enter into contracts, and
- sue and be sued
Company directors, according to ASIC, have 7 key responsibilities. These include:
- disclosing personal details of directors – a company must inform ASIC of the name, date of birth and current residential address of directors
- having a current registered office – a company must have a current registered office in Australia and must inform ASIC of its location
- having a principal place of business – a company that operates a business from a location different from the registered office must inform ASIC
- checking annual statements – a company’s details on the ASIC register must be accurate and must be kept up-to-date.
- keeping financial records – a company must keep up-to-date financial records that correctly record and explain transactions and financial position (larger companies have additional obligations to lodge financial reports with ASIC)
- notifying ASIC of key changes – whenever there are certain key changes to the company’s details (for example registered office, principal place of business, a change of directors or details of same), ASIC must be notified
- paying relevant fees to ASIC – for example, the annual review fee.
If you require assistance with meeting any of these various company director responsibilities, please contact this office.
To your success,
Dianne Kennedy CPA, Director of Small Business Know How, firstname.lastname@example.org www.smallbusinessknowhow.com.au
Disclaimer: All information provided in this newsletter is of a general nature only and is not personal financial or investment advice. Also, changes in legislation may occur frequently. We recommend that our formal advice be obtained before acting on the basis of this information.
To the fullest extent permitted by law, no person involved in producing, distributing or providing the information through this service (including Small Business Know How Pty Ltd and Taxpayers Australia Limited, each of its directors, councillors, employees and contractors and the editors or authors of the information) will be liable in any way for any loss or damage suffered by any person through the use of or access to this information.