The Treasury Laws Amendment (Combatting Illegal Phoenixing) Act 2020 (Cth), which came into effect from 17 February 2021, changed the process and timing relating to director resignations and the resignation of last remaining directors, as well as granting additional powers to ASIC, the ATO and liquidators.
The Act made changes to the Corporations Act 2000 (Cth) as well as taxation administration and GST legislation in an attempt to help prevent illegal phoenixing activities (when a new company is incorporated with the intention to continue the business of a failed company, using the same controllers and assets) including preventing the disposal of assets for less than market value and would prevents or hinders the property being available for creditors (known as ’creditor defeating dispositions’).
The regulations made seek to prevent backdating of resignations and having companies left with no directors at all.
Late notification of resignations
If ASIC is notified of a director’s resignation more than 28 days after the actual resignation date, ASIC will treat the date ASIC receives the notice as the ‘effective date’ of the resignation. Late lodgment fees will still apply.
Practically, this will mean that even if a company director had resigned, that director will remain responsible for the conduct of the company as a director until the later ‘effective date’.
Administrative oversight will not be an excuse even if a third party such as an accountant was responsible for notification.
Last remaining director
Any notices to ASIC that have the effect that a company is left without at least one director will be rejected (or member resolutions of a company to that effect are void).
Some exceptions to this rule exist, including if the last director passes away, the company is being wound up and if the director never consented to their appointment.
Practical approach to resigning
If you are a resigning director (or are removed as a director by resolution), not only should the company notify ASIC of the change in directorship using the standard form 484, you should also take steps yourself to notify ASIC using the form 370.
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This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.