Responding to a DPN: The First 21 Days

Key Takeaways

• The 21 days runs from posting, not receipt, so the first task is establishing the issue date and calculating the true deadline. A notice that spent a week in the mail has 14 days left.
• The notice type controls everything. Standard amounts can be remitted through payment, administration, small business restructuring or winding up commenced within the 21 days, while lockdown amounts can only be remitted by payment in full and one notice can contain both.
• Small business restructuring is often the most commercial exit, but eligibility requires total liabilities under $1 million excluding employee entitlements, tax lodgements up to date and employee entitlements including super paid. The lodgement requirement defeats many companies whose lateness caused the DPN in the first place.
• Insolvency appointments take days to arrange properly, so the decision needs to be made by roughly day 10. A director who starts ringing practitioners on day 18 has usually converted a remittable penalty into a personal debt.
• Paying the ATO personally is sometimes right and sometimes a mistake that cannot be unwound. Take advice on the company's position before moving personal money, because payment of a remittable penalty wastes the remission the law was offering.

1. 1.Days One and Two: Establish the Facts
2. 2.Days Three to Ten: Choose the Exit
3. 3.The Defences: Worth Running or Not
4. 4.The Five Common Mistakes
5. 5.The Position in One Paragraph

The director penalty notice is designed to force a decision. For 21 days the law holds open a set of exits from personal liability and when the period ends the exits close whether or not you understood them. Most of the damage we see in DPN matters happens inside those 21 days, not because directors do nothing but because they spend the time on the wrong things, negotiating with the ATO when they should be appointing, drafting defences when they should be restructuring or paying personally when the company's own appointment would have remitted the penalty.

What follows assumes the notice has arrived. If it has, the reading order is this article first and everything else later. Contact Astris Law on (07) 4270 8880 if you want the analysis done with advice attached.

Days One and Two: Establish the Facts

Four facts determine every later choice and all four can be established within 48 hours.

First, the true deadline. The 21 days runs from the day the ATO posts the notice or leaves it at your ASIC registered address and actual receipt is irrelevant. Find the issue date on the notice and count from it, not from the day the envelope arrived.

Second, the notice type for each amount. The notice will identify which amounts carry the full remission options and which are locked down because the company lodged more than 3 months late, lodged SGC after its due date or never lodged at all. One notice commonly contains both categories and the strategy for a mixed notice is different from either pure case. Our lockdown guide covers the classification in detail.

Third, the accuracy of the amounts. Pull the company's lodgement history and running balance account and reconcile them against the notice, paying particular attention to estimated liabilities, which the ATO builds from payroll and fund data and which can overstate the true position. An estimate can be challenged, but the challenge does not pause the 21 days, so it runs alongside the main strategy rather than instead of it.

Fourth, the other directors. Each director receives their own notice and owes the full amount, payments by any of you reduce the liability for all and an appointment by the company remits for everyone eligible. A board that coordinates inside the window has more options than directors who each quietly call their own lawyer in week three.

Days Three to Ten: Choose the Exit

For standard amounts, four events within the 21 days remit the penalty: the company pays the debt in full, an administrator is appointed, a small business restructuring practitioner is appointed or the company begins to be wound up. Choosing between them is a solvency decision as much as a DPN decision and it usually goes one of three ways.

If the company is viable and can pay, pay, whether immediately or under an arrangement the ATO accepts before the deadline. Be aware that an unfunded promise does not remit anything and a payment plan entered and then defaulted leaves the penalty alive.

If the company is viable but cannot pay now, small business restructuring is usually the most commercial exit. The directors stay in control, the business trades on and a restructuring plan typically compromises the debt at a fraction of its face value. Eligibility is the catch. Total liabilities must be under $1 million excluding employee entitlements, tax lodgements must be up to date and employee entitlements including super must be paid. The lodgement requirement is the painful one, because the lateness that produced the DPN often also defeats SBR eligibility and a company that needs to catch up lodgements to qualify needs legal sequencing advice before it lodges anything, for the lockdown reasons covered elsewhere in this series.

If the company is not viable, voluntary administration or a creditors' voluntary liquidation commenced within the window remits the standard penalties and ends the accumulation of new exposure. The appointment must actually commence within the 21 days. Signing an engagement letter with a practitioner on day 20 is not an appointment and practitioners need days to run independence checks, take indemnities and convene properly. Treat day 10 as the practical decision deadline and the last week as execution time.

For lockdown amounts none of these appointments helps. The working options are payment, negotiation with the ATO over time to pay, the statutory defences and early personal insolvency advice where the number is genuinely unpayable.

The Defences: Worth Running or Not

Three defences exist. You did not take part in management for the whole relevant period due to illness or another good reason, you took all reasonable steps to bring about payment or an appointment or the company took a reasonably arguable position with reasonable care, with the last defence available for SGC and GST only.

The honest advice for most directors is that the defences are narrow and the courts apply them strictly, with reliance on advisors and passive directorships both squarely rejected in the case law collected in our flagship guide. The decision to run a defence should be made early and on advice, for one structural reason: a genuinely available defence changes the whole strategy, while a hopeful defence drafted across the 21 days consumes the exact window in which the remission options needed to be executed. Lodge a defence when the facts support it and do not let it substitute for the appointment decision when they do not.

The Five Common Mistakes

The same errors appear in DPN matters again and again and each one closes options.

Negotiating past the deadline. The ATO will talk to you and the 21 days does not stop while it does. Directors regularly emerge from three weeks of constructive phone calls with a crystallised personal liability.

Catching up lodgements without sequencing advice. Lodging a backlog feels responsible and done in the wrong order at the wrong time it can convert future standard exposure into immediate lockdown exposure across every late period.

Paying personally by reflex. If the penalty was remittable through an appointment the company should have made, personal payment spends your money on a liability the law was about to remove.

Resigning. Resignation does not remit anything, does not stop liability that has already attached and does not prevent liability for periods that had already begun. It usually just removes your ability to cause the company to take the steps that would have helped.

Ignoring the company's parallel crisis. A DPN means the company has unpaid tax and late lodgements, which are insolvency indicators that engage the directors' duty to prevent insolvent trading and disqualify the company from safe harbour while lodgements remain outstanding. The DPN response and the solvency response have to run together and our section 588G guide covers the other half.

The Position in One Paragraph

Establish the posting date, the notice type, the true amounts and the position of your co-directors inside the first two days. Make the exit decision by day 10, because payment, restructuring, administration and winding up all need time to execute and only count if they commence within the 21 days. Run a defence when the facts genuinely support one, challenge estimates without letting the challenge eat the window and do not negotiate, lodge, pay or resign without understanding what each move does to the options that remain.

This guide is part of our Director Liability and ATO Compliance hub, which collects the full series alongside our related guides on insolvency and directors' duties.

If a director penalty notice has arrived, the clock is already running. Get in touch or call (07) 4270 8880.

This article is for general information purposes only and does not constitute legal advice. You should seek professional advice tailored to your specific circumstances before acting on any information in this article. Liability limited by a scheme approved under Professional Standards Legislation.