ASIC has announced their intention to target company directors as part of their program to combat illegal phoenix activity. They are particularly on the lookout for directors who have been involved in numerous failed companies. If you’ve missed our previous articles on the new laws that apply to directors you can find them here and here.
ASIC is targeting company directors with a history of failed companies as part of a surveillance program to combat illegal phoenix activity.
Phoenix activity is the fraudulent act of transferring the assets of an indebted company into a new company to avoid paying creditors, tax or employee entitlements. The new company, usually operated by the same director, continues the business under a new structure to avoid their responsibilities to their creditors.
Figures put the cost of this activity to the Australian economy at more than $3 billion annually.[i]
‘Illegal phoenix activity has far reaching and unfair consequences,’ ASIC Commissioner Greg Tanzer said.
‘Employees are robbed of wages and entitlements, and creditors – many of whom are small businesses – are left behind with a pile of debts. There are also significant unpaid tax liabilities which have a detrimental impact on tax revenue.’
ASIC action to combat phoenix activities includes removing directors who have been involved in two or more failed companies from the industry.
As part of the surveillance program, ASIC will focus on the building and construction, labour hire, transport, and security and cleaning industries.
‘We are looking at failed companies, mostly within the small business sector, from July 2011 onwards where there have been allegations of illegal phoenixing,’ Mr Tanzer said.
‘To date, we’ve identified a target group of 1,400 companies. We’re now paying special attention to approximately 2,500 individuals who were directors at the time these companies failed or ceased being directors shortly before the companies were wound up.
‘In some cases, company failures are nothing more than bad luck. But there are some people who deliberately walk away without any intention of meeting liabilities and establish a new company to conduct the same business. We are committed to weeding out these individuals.’
ASIC is part of a whole of government initiative to regulate illegal phoenix activity and is a member of the Inter-Agency Phoenix Forum, which comprises 13 Commonwealth government agencies, including the Australian Taxation Office, Australian Crime Commission and Fair Work Ombudsman. ASIC’s current work also includes conducting reviews of certain liquidator appointments which exhibit the hallmarks of illegal phoenix activity and funding liquidators from the Assetless Administration Fund to investigate potential illegal phoenix activity.
Common indicators of illegal phoenix activity
- The company fails and is unable to pay its debts
- Directors act in a manner which intentionally denies unsecured creditors equal access to the company’s assets in order to meet unpaid debts
- Soon after the failure of the initial company (usually within 12 months), a new company commences using some or all of the assets of the former business, and is controlled by parties related to either the management or directors of the previous entity.
Reports of misconduct can be lodged via ASIC’s website.
[i] Research compiled for the Fair Work Ombudsman by PriceWaterhouseCoopers in 2012. The report, Phoenix activity: Sizing the problem and matching solutions, is available at www.fairwork.gov.au