Opinion

More personal liability for directors

Pre-pack sales of failed businesses are a major irritant to all concerned, not least because of the appearance that the failed business can "dump" its debt and the buyers can start the same business all over again, debt-free, under a new company.

The reality for directors is not all that black and white. Apart from personal guarantees that they've given creditors over the failed business, HMRC is now sending directors Personal Liability Notices more frequently.

PLN's, created by the Social Security Administration Act 1992, are not nice; they make directors personally liable for the company's unpaid PAYE and National Insurance. However, HMRC can only issue a PLN if the failure to pay tax liabilities is "attributable to fraud or neglect on the part of one or more individuals who, at the time of the fraud or neglect, were officers" of the company.

Directors can appeal if the sum claimed in the PLN is not covered by the legislation; the failure to pay the tax liability was not attributable to any fraud or neglect by the director in question; the director was not an officer of the company at the time of the alleged event; or the opinion formed by HMRC when deciding to issue the PLN was unreasonable. 

The advice to directors accused of fraud or negligence is that they should be aware of their possible liability to HMRC, the company itself or its liquidator or administrator.  They shouldn't settle claims against them made by liquidators or administrators unless they can also be sure that they will not subsequently be issued with a PLN.

This was first published in October 2011

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