AWRS120900 - Raising a penalty assessment: insolvency or imminent insolvency

You must issue a personal liability notice, (details to be confirmed in due course), to all of the relevant officers of the company, for payment of all or part of the company penalty when:

• the company’s deliberate trading without approval has been attributed to the relevant company officers, and
• either the company is insolvent
• or there are grounds to suspect that the company may soon become insolvent.

In these circumstances it is irrelevant whether or not the relevant company officers gained or sought to gain personally from the deliberate trading without approval.

You must therefore pursue payment of all or part of the penalty from all of the relevant liable officers.

If at the time when you are issuing the penalty assessment to the company you have decided that a penalty is not to be apportioned to the company’s officer or officers, you cannot pursue the officer or officers for payment of the penalty even if the circumstances subsequently change. For example, if the company later becomes insolvent.

Likewise you cannot change the proportion of the company’s penalty that has already been notified to the company officer or officers.

This means that where a company becomes insolvent, or there is a risk that they will go into liquidation, you must act quickly in issuing the penalty assessment and the personal liability notice or notices where the deliberate trading without approval is attributable to the officer or officers.