Western Australian Current Acts Western Australian Current Acts (1) This section
applies where the Commissioner believes, on reasonable grounds, that —
(a) a
body corporate has been trading while insolvent to the knowledge of a
director;
(b) the
Commissioner has issued an assessment notice, which assessment consists of or
includes an amount in relation to pay-roll tax, to the body corporate, and the
amount assessed in relation to pay-roll tax has not been paid by the due date.
(2) The Commissioner
may serve notice on the director informing the director that the director,
along with any other directors of the body corporate on whom the Commissioner
serves notice in similar terms, will become jointly and severally liable with
the body corporate for the payment of the pay-roll tax unless before the
expiry of 28 days from the date of the notice the body corporate remedies its
default.
(3) The Commissioner
must serve a notice under subsection (2) by arranging for a copy of the notice
to be given to each director personally.
(4) However, if, after
exercising due diligence, it appears to the Commissioner that it is not
practicable to give a copy of the notice personally to a director, then the
Commissioner may apply to the Supreme Court for an order for substituted
service in accordance with section 117(2).
(5) For the purpose of
this section, a body corporate is taken to remedy a default if —
(a) the
liability is paid; or
(b) the
Commissioner by notice to the body corporate offers the body corporate an
opportunity to enter into a tax payment arrangement, and the body corporate
enters into the tax payment arrangement on conditions satisfactory to the
Commissioner; or
(c) the
body corporate enters into voluntary administration under Part 5.3A of the
Corporations Act 2001 of the Commonwealth; or
(d) the
body corporate goes into liquidation.
(6) If the body
corporate fails to remedy its default within the time specified in the notice
to a director under this section, the directors become jointly and severally
liable, with the body corporate, for the payment of the tax liability assessed
against the body corporate.
(7) If a body
corporate remedies its default by entering into a tax payment arrangement but
later contravenes a condition of the arrangement, the body corporate’s
default is taken to revive and the Commissioner may serve another notice on
the directors under this section.
(8) In proceedings for
recovery of tax from a director under this section, it is a defence for the
director to establish that —
(a) the
director took all reasonable steps that were possible in the circumstances to
get the body corporate to remedy its default; or
(b) the
director was unable because of illness or for some other proper reason to take
steps to get the body corporate to remedy its default.
(9) In proceedings for
recovery of tax from a director under this section, the onus of establishing
that the director did not have the knowledge required by section 67(1)(a) is
on the director.
(10) If a director
pays tax or tax is recovered from a director under this section, the director
is entitled to be indemnified by the body corporate for the amount paid or
recovered.
(11) This section does
not apply in relation to —
(a) a
director of a body corporate to which the Statutory Corporations (Liability
of Directors) Act 1996 applies; or
(b) a
director of a body that is incorporated or taken to be incorporated under the
Associations Incorporation Act 2015 .
[Section 67 amended: No. 30 of 2015 s. 229.]