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In the paper Action against Fraudulent Phoenix Activity: Proposals Paper, Treasury made a range of recommendations to amend director's liability provisions and taxation law.
Recommendations made by the proposal paper included:
- removing the ability of directors engaged in fraudulent phoenix activity to avoid personal liability for PAYG(W) liabilities by placing the company into administration or liquidating the company
- ensuring the promoter penalty regime is able to target those individuals promoting fraudulent phoenix activity
- providing the Commission of Taxation with the discretion to require a company to provide an appropriate bond (supported by sufficient penalties) where it is reasonable to expect that the company would be unable to meet its tax obligations and/or engage in fraudulent phoenix activity
- making directors personally liable for the debts of a liquidated company in circumstances where a 'new' company adopts the same or similar names as its previous incarnation
- adopting the doctrine of inadequate capitalisation and allow the corporate veil to be lifted where a company sets up a subsidiary with insufficient capital to meet the debts that it could be reasonably expected to incur.
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It was noted by stakeholders that phoenix activity has evolved significantly over the past decade. First, the ATO noted that they are seeing significantly less 'asset stripping' of
state the date on which the act came into force
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