Served with ATO court documents in Perth or anywhere in Australia
When the ATO starts recovery action, usually in the name of the Deputy Commissioner of Taxation, the documents set a timetable that does not wait. Our tax lawyers are in Perth and act for clients Australia-wide. This page explains the documents people most often receive, what each one means and what to do first.
First, whatever the document
- Keep every page and note the date you were served.
- Note the date for your response or any hearing date.
- Call 1800 403 775 or book the free 30 minute consultation today, before any deadline.
A statutory demand to your company
A statutory demand under section 459E of the Corporations Act 2001 requires a company to pay the debt, or secure or settle it to the ATO's reasonable satisfaction, within 21 days of service.
If the company does neither, it is presumed to be insolvent and the ATO can apply to the court to wind it up. An application to set the demand aside must be filed and served within the same 21 days, and the court cannot extend that time.
What to do now
- Write down the date the demand was served and count 21 days from it.
- Keep the demand, its envelope and any affidavit served with it.
- Gather the company's ATO account statement and lodgment records.
- Speak to a lawyer well before the 21 days end, not on the last day.
How we help
We check whether the demand can be challenged, which for an assessed tax debt is possible only in limited cases, prepare and file any application to set it aside, and talk to the ATO about payment or other arrangements.
A bankruptcy notice or creditor's petition
To make an individual bankrupt, the ATO usually first serves a bankruptcy notice, which gives 21 days to pay the debt or reach an arrangement the ATO accepts. Not complying is an act of bankruptcy.
The ATO can then file a creditor's petition in the Federal Circuit and Family Court of Australia or the Federal Court, asking the court to make you bankrupt. The petition has a hearing date, and anything you want to say in opposition has to be filed before that date.
What to do now
- Write down the date of service and the hearing date on the petition.
- Do not wait for the hearing: opposing documents are due before it.
- Gather your notices of assessment, any objection and any payment plan letters.
- Speak to a lawyer straight away.
How we help
We review the notice or petition and the debt behind it, advise on whether it can be opposed, paid or settled, prepare the opposing documents, appear at the hearing and negotiate with the ATO.
A debt claim in the Federal Court or a state court
The Deputy Commissioner can sue for a tax debt in the Federal Court or in a state or territory court. In Western Australia that is often the Magistrates Court, the District Court or the Supreme Court, depending on the amount.
The claim or writ states how long you have to respond. If you do not respond in time, the ATO can ask the court for judgment without a hearing. A defence usually cannot reopen the amount of an assessment; that is generally done through an objection and review, and a lawyer can tell you which route is open.
What to do now
- Write down the date of service and the response date stated on the claim.
- Keep every page, including any statement of claim or affidavit.
- Gather your notices of assessment, any objection and any payment plan letters.
- Speak to a lawyer before the response date passes.
How we help
We file the response the court requires, look at whether the claim can be defended or, in limited cases, put on hold while an objection is decided, and negotiate payment arrangements or settlement with the ATO.
Director penalty notices and proceedings
A director penalty notice tells a director that they are personally liable for certain unpaid company amounts: PAYG withholding, superannuation guarantee charge and GST. For most notices, the penalty is remitted if, within 21 days after the notice is given, the company pays the debt, an administrator or a small business restructuring practitioner is appointed, or the company is placed into liquidation.
A lockdown notice, which applies where the company did not report those amounts within three months of their due date (or, for superannuation guarantee charge, by the date its statement was due), can only be remitted by payment. The 21 days run from when the notice is given, which can be earlier than the day you open it. If the penalty is not paid or remitted, the ATO can sue the director for it in court, where the limited statutory defences have to be raised.
What to do now
- Find the date on the notice and work out when the 21 days end.
- Check whether it says it is a lockdown notice.
- Gather the company's lodgment history and ATO account statements.
- Speak to a lawyer at once, before the 21 days end if you still can.
How we help
We act for directors defending director penalty claims in the courts. We check whether the notice was validly given and whether a statutory defence applies, and negotiate with the ATO.
Calling us or booking a consultation does not make us your lawyers. We act for you only once you have signed our costs agreement. This page is general information about Australian law, not advice about your situation.