On 9 October 2013, the ATO sent letters to all company directors that have unpaid superannuation guarantees amounts. The correspondence explains the obligations of directors and their personal risk when it comes to superannuation guarantee debts.
Most directors understand they may avoid personal liability for a company PAYG tax debt by ensuring their BAS returns are lodged within three months of the due date (whether or not the debt can be paid). However, they are generally unaware that if a company cannot meet its superannuation obligations then it is required to submit a Superannuation Guarantee Charge Statement, and if this occurs more than three months late, the directors can be held personally liable for the unpaid superannuation sum.
If you have received a super warning letter you should:
• Pay the debt!
• If the company is unable to pay the debt, it must always lodge its BAS and Superannuation Guarantee Charge Statements within three months of the correct lodgement/payment date.
• If a company fails to lodge a BAS and Superannuation Guarantee Charge Statements within three months of the due date, a director who receives a Director Penalty Notice cannot avoid personal liability for a company tax debt by placing their company into liquidation.
• Contact a tax lawyer immediately to discuss.