Forgot to Disclose Public Officer to ASIC

Lbargainzzzz on 06/06/2020 - 16:09

Hi OzBargains,

My husband started a company in July 2019, the company is not yet profitable. He has just noticed that he has forgot to post a letter to ASIC declaring the public officer.
I have just read "A public officer does not need to be appointed as part of the company formation. However, the ATO must be notified of the appointment within 3 months of the new company carrying on a business or deriving income. The penalties for not doing this are severe and currently amount to $110 a day."

We are going to call ASIC on Monday, but being the weekend we are stressed that he may need to pay a huge fine. Is anyone able to tell me whether we will receive a sizeable fine for this? This could potentially bankrupt us.

Thanks for your help!

Education & Work

Comments

    • kahn on 06/06/2020 - 16:28
      +15

      I hereby bestow upon you the title of Ozbargain's Most Virtuous User.

  • AdosHouse on 06/06/2020 - 16:15
    +5

    I kinda doubt they will give you a massive fine for a business that isn't even turning a profit.

    Just talk to them Monday, explain the situation, and see what they say. Stressing about it never helped anything.

  • arkie0 on 06/06/2020 - 16:17
    +4

    This is OzB, the pillar of righteousness in our community. Pay the fine.

    This reads exactly the same as a speeding ticket thread.

    • fantombloo on 06/06/2020 - 20:10
      +4

      Except that this "offence" causes noone any actual, or risk of, harm.

    • TheRealCher on 07/06/2020 - 07:02

      Ms paint before judging, please

  • Slippery Fish on 06/06/2020 - 16:25
    +5

    They issue fines to people they catch or who knowingly break the law. If you approach them I doubt very much they would fine you.

    • pjetson on 06/06/2020 - 16:44
      +2

      You don't seem to have dealt with bureaucracy very much! Some organisations can be nice, others (especially local councils, in my experience) will issue every fine that they can, regardless of the circumstances.

      • Slippery Fish on 06/06/2020 - 17:22
        +1

        I've dealt with plenty, I just refuse to be dicked.

  • Findmebargain on 06/06/2020 - 16:28
    +1

    Check the details you provided when registering for the Company's ABN (assume you did before it started trading). You can do that by logging in at
    https://www.abr.gov.au/business-super-funds-charities/updati…

    Public Officer is recorded on the ABR (part of ATO), so possibly whoever helped with registering for ABN and TFN of the Company would have already had that covered.

    • demeter on 08/06/2020 - 10:50

      This.
      And there's not really a priority on these notifications at the ATO anyway.

  • pjetson on 06/06/2020 - 16:41
    -2

    This is not legal advice, but it appears to me that you may not need to inform the ATO of the date when a public officer was appointed, merely that they were appointed and their name and contact details. Perhaps if you were to do that now, maybe they "won't notice"?

    It appears that you do have to have had a minuted meeting of directors to appoint a public officer, and the public officer may have to declare their consent to be appointed in writing. These documents would have to have been dated. Did these things happen, or did you not ever formally appoint a public officer? If everything was actually done properly, but the paperwork was never sent in, then perhaps the paperwork "falling down the back of the filing cabinet" might in some way mitigate the problem?

    Did an accountant or lawyer set up the company for you, or did you DIY it? I'd have expected that an accountant or lawyer that you paid for the services of would have had an obligation to make sure that everything was done properly, and you may have a claim against them if the ATO/ASIC take the issue further.

    Again, I am NOT a lawyer and this is NOT legal advice. If you have a lawyer or an accountant, I strongly suggest that you talk to them FIRST on Monday BEFORE you make anything official by calling ASIC and/or the ATO.

    • [Deactivated] on 06/06/2020 - 16:59
      -1

      Dont give advice you are not willing to stand by.

    • garetz on 06/06/2020 - 17:06

      Very bad advice, if you try to hide it, you will get fined 100% of the time.

    • hoxyz on 06/06/2020 - 17:24
      +3

      Very practical advice. I don't see why it got downvoted. Considering the number of small businesses, I'm sure OP is not the only few ones having not done that.

  • holdenmg on 06/06/2020 - 17:07
    +1

    Monday is a Public Holiday in some places, check on that before attempting to phone ASIC on Monday.

    • Diji1 on 06/06/2020 - 17:59
      +1

      Think it's nationwide.

      Think it's the birthday of the pointless head of state that we pay 500 million dollars to visit us every few years.

      Amazingly, conservatives, who are always bleating about "where's the money", stay silent and go and gawp at the pointless artifact they paid to import. That's because they're controlled by billionaires and not thinking rationally about the economy.

      • barozgain on 06/06/2020 - 18:02
        +6

        Think it's nationwide.

        NO
        NOT IN WA OR QLD

        • elgrande on 06/06/2020 - 18:46
          +4

          They don't count surely?

          • TheRealCher on 07/06/2020 - 07:03

            @elgrande: In QLD we don't because we can't… Also we get to have a holiday in October now… While you all have to get up an hour earlier…

        • Slippery Fish on 06/06/2020 - 19:02

          Good my shift is only 2 hours on Monday hahaha

  • Earl of Lemongrab on 06/06/2020 - 17:18
    +1

    Why didn't you appoint the public officer at the inception of the business?

  • barozgain on 06/06/2020 - 17:33
    +1

    Is anyone able to tell me whether we will receive a sizeable fine for this?

    Well we're not ASIC so we can't

  • WreckTangle on 06/06/2020 - 17:54

    Let them know and you”ll probly be ok

  • Diji1 on 06/06/2020 - 18:03

    You're almost certainly not going to face consequences provided you notify them.

    By notifying them you are making it clear that there is no criminal intent.

    • Lastchancetosee on 07/06/2020 - 18:20

      For oversights like this, I have found they are very reasonable, provided you get all the paperwork required in, and your letter of contrition.

      Good luck.

  • Borg on 06/06/2020 - 18:06
    +2

    Just call them and explain your situation. I have found the ATO for the most part to be friendly and are not out there to get you. The important part is making contact upon discovering your mistake. Its only a new venture and is not in their interest to put you out of business. It's when you knowingly ignore ATO notices that they can get more fussy. My guess is all will be well and that you won't be fined anything (assuming you don't own them monies, in which case will be a matter of paying it ASAP). Hope I am right. Just call them :-)

  • bargainzzzz on 06/06/2020 - 20:21

    Thanks for the response everyone! It was an honest mistake, it was a very busy time when starting the new venture and unfortunately this was an oversight. We are going to speak a lawyer on Monday that helped us with the application. I'll let you know how we go.

    • RockyRaccoon on 07/06/2020 - 05:59

      Do that. ASIC can be tough on easy targets , failure to file annual fees, doubles, if you are late. So talk with someone like a lawyer before talking to ASIC.

  • exulted on 07/06/2020 - 07:26
    +2

    Ask if they can give u a 5% discount on the daily fine. Pay with Amex for the points

  • anthony t on 07/06/2020 - 12:23

    I have inadvertently broken ASIC rules a few times over quite a few years.
    I just submitted the correct documents, such as the Director's appointment, with the date etc. that the event really happened (ie no false statements). They updated the records and I didn't even hear from them.
    Check what 'findmebargain' says above (today, in case it is already OK, so then you can relax), then post the letter if it's needed to correct their records. Obviously, this suggestion assumes that what you've said is the whole, salient story.

    • exulted on 08/06/2020 - 08:21
      +1

      "sailient", so ur in ship sales

  • demeter on 08/06/2020 - 10:56

    Okay… From what I know, Notification of public officer goes to the ATO and ASIC does not really keep this information.
    Not going to get in trouble specifically for not doing this. You're telling the ATO who is the responsible person for the record in the system.
    A director can just send a letter to notify the appointment of a new public officer or you can update it in the ABR, through your tax agent.
    Thats it.

  • anthony t on 08/06/2020 - 11:57

    Exulted: the medical profession has been defining DNA incorrectly for years - it really is an acronym for National Dyslexics Association. Retraxshun excepted…

  • pjetson on 10/06/2020 - 22:27

    bargainzzzz, what was the outcome?

  • bargainzzzz on 12/06/2020 - 07:43

    Spoke to a lawyer, he recommended that we just notify them with the original document. We are sending it off with a cover letter explaining why it is late. I’ll let you know the outcome if I ever receive something back.

    • pjetson on 12/06/2020 - 21:41

      Thanks, it's good to find out the outcome.

    • EagleAngle on 17/08/2023 - 08:36

      Hi bargainzzzz, wondering how did it go? I am in the similar situation. Stresssss.

      • bargainzzzz on 17/08/2023 - 18:34

        Hi EagleAngle, we submitted all the documentation and never heard anything more about it. After speaking to a few people, ASIC aren’t really out there to screw someone with a small business over. I’d just submit the required and it should be fine.

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