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The ATO advises that on 29 June 2012, changes were made to the tax laws to reduce the scope for companies to engage in fraudulent phoenix activity or to escape liabilities and payments of employee entitlements.

By introducing further disincentives for companies to avoid their tax law and employee obligations, these changes are intended to deter directors from engaging in fraudulent phoenix activities and to improve the regulatory environment for businesses that comply with the tax law.

The changes protect worker's entitlements and strengthen director's obligations by:

  • extending the director penalty regime and the estimates regime to apply to unpaid superannuation guarantee charge
  • ensuring that directors cannot discharge their director penalties by placing their company into administration or liquidation when pay as you go withholding (PAYG withholding) or superannuation guarantee charge remains unpaid and unreported three months after the due date
  • in some instances, making directors and their associates liable to PAYG withholding non-compliance tax (NCT), a tax equivalent to reducing PAYG credit entitlements where the company has failed to pay amounts withheld to the Commissioner.

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