Illegal Phoenixing Activity: Corporations up for Review

Tuesday 14 July 2015 @ 9.34 a.m. | Legal Research | Taxation | Trade & Commerce

The Senate Economic Reference Committee (SERC) began its review into insolvency in the Australian construction industry at the end of December 2014. In the recent public hearings, the issue of phoenix companies was part of the discussion, and the impact their fraudulent behaviour has on the construction industry and on corporations and company tax as a whole.

What is Illegal Phoenix Activity? 

Illegal phoenix activity involves the intentional transfer of assets from an indebted company to a new company to avoid paying creditors, tax or employee entitlements. The directors leave the debts with the old company, often placing that company into administration or liquidation, leaving no assets to pay creditors. 

Meanwhile, a new company, often operated by the same directors and in the same industry as the old company, continues the business under a new structure. By engaging in this illegal practice, the directors avoid paying debts that are owed to creditors, employees and statutory bodies (e.g. the ATO). Illegal phoenix activity is a serious crime and may result in company officers (directors and secretaries) being imprisoned.

Characteristics of Illegal Phoenix Activity

Not all company failures will involve illegal phoenix activity. Genuine company failures do occur. Where a business has been responsibly managed, but fails, that business may continue after liquidation by using another corporate entity without, necessarily, being involved in illegal phoenix activity.

Illegal phoenix activity, on the other hand, typically involves those in control of companies, such as directors or former directors, deliberately avoiding liabilities by shutting down the original indebted company (e.g. by placing it into liquidation), transferring some or all of the assets to another company and then using that company to conduct the same type of business. The key characteristics are:

  • the company fails and is unable to pay its debts

  • the company acts in a manner that intentionally denies unsecured creditors equal access to the company's assets to meet and pay debts

  • soon after the failure of the initial company (usually within 12 months), a new company commences which may use 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 company.

Initiatives to Combat Illegal Phoenix Activity

People associated with the construction industry warn that when the incidence of illegal phoenix activity reaches a critical point, other companies in the industry will face a difficult choice between succumbing to the same illegal behaviour or else risking being priced out of business. Although illegal phoenix activity is present in other industries, the construction industry and its characteristics make illegal phoenix activity prolific. Particular characteristics include making debt recovery difficult; encouraging sub-contracting and employing a large number of migrant workers or workers on 457 visas. However, there are initiatives that have been put in place to combat illegal phoenix activity.

ASIC

ASIC has put in place a number of initiatives to combat illegal phoenix activity including:

  • Funding liquidators;
  • Disqualifying directors;
  • A liquidators' assistance program; and
  • Identifying and deterring illegal phoenix activity with the launch of a new surveillance initiative.

ATO

The ATO has launched the Inter-Agency Phoenix Forum with a new Phoenix Taskforce, who use sophisticated data matching tools to identify, manage and monitor suspected fraudulent phoenix operators.

The ATO also enforces the legislative changes to the director penalty regime that were enacted in 2012 (incorporated in the Personal Liability for Corporate Fault Reform Act 2012 (No. 180 of 2012)(CTH)), which can lead to company directors being personally liable if they don't ensure their company meets certain tax obligations or, alternatively, goes into liquidation or voluntary administration if it can't meet those obligations.

Senate Inquiry into the Australian Construction Industry

The terms of reference for the inquiry (submissions closed on 17 April 2015) were the scale and incidence of insolvency in the Australian construction industry, including:

  1. the amount of money lost by secured and unsecured creditors in the construction industry and related insolvencies, including but not limited to: 
    1. employees, 
    2. contractors and sub-contractors, 
    3. suppliers, 
    4. developers, 
    5. governments, and 
    6. any other industry participants or parties associated with the Australian construction industry;
  2. the effects, including the economic and social effects, of construction industry insolvencies, having particular regard to the classes of creditors in paragraph (a);
  3. the causes of construction industry insolvencies;
  4. the incidence of 'phoenix companies' in the construction industry, their operation, their effects and the adequacy of the current law and regulatory framework to curb the practice of 'phoenixing';
  5. the impact of insolvency in the construction industry on productivity in the industry;
  6. the incidence and nature of criminal and civil misconduct related to construction industry insolvencies, having particular regard to breaches of the Corporations Law both prior to and after companies enter external administration and/or liquidation;
  7. the current extent and future potential for the amount of unpaid debt in the industry to attract non-construction industry participants to the industry for the purposes of debt collecting and related activities and the extent of anti-social and unlawful conduct related to debt collecting and related activities;
  8. the adequacy of the current law and regulatory framework to reduce the level of insolvency in the construction industry; and
  9. any other relevant matter.

There were 21 individual submissions and the Inquiry is due to report to Parliament by 11 November 2015.

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