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THE OFFICIAL SV PARTNERS NEWSLETTER
ABSORBING THE SHOCK OF EXTERNAL EVENTS
Travis Olsen - Director | Adelaide
Australian business does not operate in a vacuum and is subject to global events which can impact the smallest businesses in ways that no one is able to predict. These external shocks can have a devastating impact on any business, let alone one that is already exhibiting signs of financial distress.
Over the last six years, external shocks such as COVID, global inflation, tariffs and armed conflict have resulted in:
• increased fuel costs;
• interest rate increases; and
• increased input costs.
Certain industries appear to have been affected more than others, including transport, hospitality and construction.
The question is what should the director(s) do when these external shocks cause a significant impact on their business?
To navigate these times of uncertainty, the planning must begin well before any external shock is encountered.
Planning involves understanding your business and ensuring it complies with its obligations. Key steps that should be undertaken (not exhaustive) includes:
• Producing timely and accurate financial reports, whether they are from internal management accounts or externally produced by the business’ external accountant;
• Maintaining, at a minimum, a cashflow forecast, but preferably three-way forecasts;
• Maintaining communication with key stakeholders (e.g. financier); and
• Lodging all tax returns (including BAS) and Superannuation Guarantee Charge forms on time, even if payment in full is unable to be achieved.
The above steps do not prevent the external shock from impacting the business, however they allow the director(s) to objectively review their business at short notice to understand steps that can be taken to treat the symptoms of the external shock.
• The treatment may consist of:
• Internal restructuring;
• Formal restructuring arrangements; or in the worst case
• Winding up the business.
Internal restructuring
By having information readily available, the director(s) are able to review their business and take appropriate steps to address the symptoms of the external shock, either on their own or with the help of their advisors.
Such steps may include passing on the increased costs to the consumers in the instances of increased fuel costs or input costs wherever possible or restructuring/refinancing the debt to reduce the impact of increased interest rates.
Properly prepared forecasts will enable the director(s) to ascertain how those steps may impact the ongoing viability of the business.
The steps that will be taken will often be specific to the business and having the information at the director’s fingertips will allow for quick adjustment where required.
The key steps that should be undertaken are also required should the director(s) wish to undertake a Safe-Harbour engagement under section 588GA of the Corporations Act 2001 (Act).
Formal restructuring arrangements
Unfortunately, the external shock may be so significant that internal restructuring may not prevent the business from failing. The Act provides for formal mechanisms to provide a company with space whilst a restructuring plan is put into place by the way of:
• Voluntary Administration (VA); or
• Small Business Restructuring (SBR).
Whilst a VA is available to every company regardless of size, an SBR has certain eligibility criteria, including unsecured debts of less than $1million, taxation and superannuation lodgements must be up to date and employee entitlements must be paid. Subject to meeting the criteria, the company would then have the ability to enter into the SBR.
The key steps provided above lay the ground work for assisting the creditors to understand how the
external shock has impacted the business and may provide the best possible opportunity for creditors voting favourably on any formal restructuring proposal.
Winding up the business
If the external shock is far too significant or causes the failure of the business, then the director(s) can wind up the business and the company.
In the circumstances where the debts are unable to be paid in full, a liquidation is required to wind up the business. Having taken the above steps, the director may avoid falling liable for the company’s ATO debts by way of a lockdown Director Penalty Notice.
What if no plans exist?
Running a business is a difficult endeavour and the smaller the business the greater the challenge on the director(s). There will be instances where the recommended planning has not been undertaken for a variety of reasons and especially so, where the business is facing financial distress.
Whilst the best time to have undertaken the planning was yesterday, the next best time is today. We recommend that the director(s) work with their accountants and business advisors to ensure proper planning is put in place.
Where the business is facing financial distress, getting early advice on the options to deal with that financial distress is highly recommended.
The longer the situation is left, the worse it may become thereby limiting the available options.
Final thoughts
The old saying goes, the past is history and the future is a mystery. Whilst we can use what we have learnt from the past, we can only predict what may come. With good planning and forecasts, the director(s) will be in a stronger position to navigate the symptoms of external shock than those who have no plans in place.
Here at SV Partners, we have a team of restructuring experts who can assist with providing the options that exist to navigate the external shocks impacting the business.
企业税务负债的应对方案：企业如何化解税务债务危机
Katie Chan (Accountant) and Matthew Hudson (Director) | Brisbane
在当前充满挑战的经济环境下，许多企业正面 临收入下滑、经营成本上升以及现金流紧张等 多重压力。随着财务状况持续承压 税务欠款 已成为众多企业必须面对的重要问题。
不论是所得税、商品及服务税 (GST)、员工预 扣税 (PAYG Withholding) 等未缴税款 还是因 逾期缴纳而产生的罚款及利息，未解决的税务 债务都可能对企业的持续经营构成严重威胁。
澳大利亚税务局 (ATO) 有权采取多种追讨措 施，包括征收罚款 冻结银行账户 启动法律 程序，甚至在严重情况下申请将公司清盘。
值得注意的是 根据董事罚款通知 (Director Penalty Notice, DPN) 制度 董事在某些情况下 也可能需要对未缴纳的特定税务义务承担个人 责任 尤其涉及PAYG员工预扣税、GST及养老 金保障 (Superannuation Guarantee) 的相关债 务。这些后果凸显了企业及时且主动处理税务 债务的重要性。
然而，税务债务并不意味着企业必然走向终 结。通过及早采取行动、制定合理的重组方 案 并积极与ATO沟通协商 许多企业仍有机 会恢复财务稳定并继续经营。本文将介绍税务 负债企业可考虑的主要解决方案 以及各方案 的适用情形和关键考量因素。
1. 税务债务重组 (Tax Debt Restructuring) 对于仍具备经营能力且有能力履行未来纳税义 务的企业而言 由企业通过其会计师或税务顾 问与ATO协商债务偿还安排 往往是最常见且 最实际的解决方案之一。
企业可向ATO申请：
• 分期付款计划 (Instalment Payment Plans)
• 延长付款期限 (Extended Payment Deadlines)
• 暂缓执行追讨措施 (Temporary Relief from Enforcement Actions)
如果企业能够证明其具备持续经营能力，并有 切实可行的还款计划，ATO通常会酌情考虑给
予适当的债务偿还安排。及早与ATO展开沟 通，往往有助于减轻企业的短期资金压力，并 避免进一步的执法行动。
2. 小型企业重组 (Small Business Restructuring, SBR)
根据《2001年公司法》(Corporations Act 2001 (Cth)) 第5.3B部分的规定，符合条件且总负债低 于100万澳元的公司，可向债权人包括ATO提出 小型企业重组方案。
如果重组方案获得法定多数债权人批准，公司 可在董事继续管理企业的情况下，对现有债务 进行重组和调整安排，并维持正常经营。
对于具备长期经营前景但暂时面临财务困难的 小型企业而言，SBR提供了一种相对高效且成 本较低的正式重组机制，有助于企业摆脱债务 压力并恢复正常运营。
3. 自愿托管与公司安排契据 (Voluntary Administration and DOCA)
对于税务债务较大或财务状况较为复杂的企 业 自愿托管 (Voluntary Administration) 可能是 一项值得考虑的重组方案。
根据《2001年公司法》第5.3A部分，公司可进 入自愿托管程序。在此期间，债权人的追偿行 动将暂时受到限制 由独立托管人对公司的财 务状况、经营能力以及重组前景进行评估。
在托管期间，公司可与债权人协商签订公司安 排契据 (Deed of Company Arrangement，简称 DOCA)，对包括ATO在内的债权人债务进行重 组安排。
如果DOCA获得法定多数债权人批准 公司可 能：
• 仅需偿还部分债务；
• 延长债务偿还期限；
• 避免进入清算程序。
对于具有重整潜力的企业而言，DOCA往往是
避免破产清算从而保留企业价值及业务运营的 重要途径之一。
4. 公司清算 (Company Liquidation) 当企业已无法持续经营且无力履行债务义务 时，清算可能成为最后的选择。
在部分情况下 与其任由财务状况持续恶化 不如及早进行有序清算 以实现更为有利的结 果。
清算程序通常包括：
• 出售公司资产；
• 按法定顺序向债权人分配资金；
• 正式终止企业经营活动。
虽然清算通常被视为企业经营失败的结果， 但有序的清盘程序仍可带来多方面的好处， 包括：
• 避免进一步财务损失；
• 降低董事潜在责任风险；
• 防止债务规模持续扩大；
• 为股东、债权人及其他利益相关方提供 明确的解决方案。
5. 非正式重组与再融资 (Information Restructuring and Refinancing) 在某些情况下 企业可在不进入正式破产或重 组程序的前提下 通过非正式安排解决税务债 务问题。
常见措施包括：
• 调整经营模式以提高盈利能力；
• 实施成本控制及削减计划；
• 出售闲置或低效资产；
• 引入现有或新投资者进行注资；
• 对现有债务进行再融资。
这些措施有助于改善企业流动性 并筹集资金 用于偿还税务债务 同时维持企业的持续经营 能力。
需要注意的是，非正式重组通常在企业能够及 早识别财务问题且仍具备偿付到期债务能力的 情况下效果最佳。因此，尽早寻求专业意见并 采取相应行动尤为重要。
6. 申请减免罚款及利息 (Remission of Penalties and Interest)
在特定情形下，ATO可酌情减免部分或全部已 累积的罚款及利息，从而降低企业整体税务负 担。
ATO通常会根据个案情况进行评估。如果企业 能够证明其曾积极履行税务义务 或因超出自 身控制范围的特殊原因而未能按时缴税 则有 机会获得减免。
ATO可能考虑减免的情况包括：
• 自然灾害影响；
• 严重财务困难；
• 企业运营系统故障；
• 现金流中断；
• 其他重大且不可预见的特殊情况。
虽然ATO通常不会减免税款本金，且通常仅在 有限情况下才会减免罚款和利息，但罚款及利 息一旦获得减免或豁免仍可为企业提供实质性 的财务缓解，并提升其偿债能力。
税务欠款并不一定意味着企业走到尽头。通过 与ATO积极协商、实施债务重组、引入融资安
排以及寻求专业顾问协助，许多企业仍能够成 功渡过财务困境，并重新实现可持续经营。对 于面临税务债务压力的企业而言，时间往往是 最关键的因素。越早识别问题、制定计划并采 取行动 企业成功实现重整和长期存续的机会 就越大。
如果您的企业正面临税务债务问题，我们的团 队可以协助您评估可行方案、与ATO进行协 商，并制定及实施合适的重组策略，以帮助保 护和延续您的业务。欢迎随时与我们联系，讨 论您的具体情况 并制定切合您需求的解决方 案。
If you need a translator, SV Partners have staff fluent in: Afrikaans, Arabic, Cantonese, Dutch, French, Gujarati, Hindi, Hokkien, Indonesian, Khmer, Korean, Malay, Mandarin, Persian, Punjabi, Spanish, Swahili, Tagalog, Thai and Waray-Waray
HOW THE PERCEPTION AND IMPACT OF BANKRUPTCY HAS CHANGED OVER TIME
Hillary Orr - Consultant | Adelaide
The world is developing faster each year with changes to technology and the advance of AI leading to much of the evolution. It is interesting to reflect on the changes that have taken place within the bankruptcy arena in Australia over the last few decades. Some of the changes have been driven by policy initiatives that treat bankruptcy as an opportunity for a fresh start as opposed to the punishment regime that was previously a significant purpose.
Prior to January 1844 a debtor could be imprisoned for failure to pay their debts. In January 1844 legislation was introduced that abolished imprisonment for debtors. Part of the reason behind the abolition was that the economy was experiencing tough financial conditions and increasing numbers were putting a strain on prison resources. At that time bankruptcy legislation was specific to each state and it was not until 1924 that a federal system was introduced.
The first major changes to the bankruptcy regime came into effect with the introduction of the Bankruptcy Act 1966. Prior to the introduction of the Act, a bankrupt had to apply to Court for release from bankruptcy. Similarly, a trustee was required to file an account of each administration with the Court and apply to be released as trustee. In practice a person could be bankrupt indefinitely even following the filing of a Statement of Affairs.
The 1966 Act reduced the minimum period for which a person could be bankrupt to five years. Contrast that with subsequent amendments that reduced the minimum period to three years and the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 which proposes a reduction of the period of bankruptcy to one year (in
certain cases). This Bill has not yet been passed. Its intent was to encourage entrepreneurial behaviour and reduce the stigma of bankruptcy. In broad terms it counterbalanced the early discharge provisions for debtors with low levels of debt and assets that were introduced in 1991 and repealed in 2003. There was a carve out in all stages of the amendments to the Acts and in the Bill for recalcitrant debtors providing for an extension of the duration of bankruptcy to a current maximum of eight years. A bankrupt who fails to lodge a Statement of Affairs still remains bankrupt indefinitely.
Since 1966 some of the changes to the Act have arisen in response to public concern about the activities of high profile debtors. Alan Bond’s lifestyle afforded him benefits that were not assessable as income because they were not derived from employment. Subsequent amendments incorporated provisions to assess as income benefits received by a bankrupt from the largesse of family and friends. The ability of a bankrupt to travel overseas was also addressed following the departure of Christopher Skase to Majorca shortly after he was made bankrupt. For a number of years prior to his death, he successfully resisted attempts to extradite him to Australia.
High profile debtors cannot escape public scrutiny. In recent years other bankrupts have been able, to some extent, to keep their status private, at least in social circles. The requirement to gazette bankruptcies arising by way of sequestration order was dispensed with some time ago. While all bankruptcies whether debtor or creditor initiated are recorded on the National Personal Insolvency Index, maintained by the Australian Financial Security Authority, it requires an interested party to pay a fee to undertake a
search. Further, the search requires an exact name match and hence aliases may not be detected. Information available on a Federal Court Lawsearch provides information in relation to sequestrated estates only.
Some professions prohibit employment of a bankrupt. This predominantly relates to employment involving the handling of monies or where a person is required to be a “fit and proper” person. In those circumstances a trustee would be expected to notify the employer or industry body. Otherwise, a trustee would not normally contact an employer except in the event of noncooperation by the bankrupt. Notwithstanding a reduction in advertising bankruptcies, bankrupts will still be required to disclose current and past bankruptcies in rental applications and financial documents.
While the number of bankruptcies fell significantly in 2019 and 2020 as a consequence of COVID-19 the long-term impact of the lock down is starting to impact bankruptcy appointments, a flow on effect from the liquidation of companies finally succumbing to the debts accumulated in that period.
Moving forward, amendments to the bankruptcy legislation are inevitable as we grapple with the economy, anti money laundering checks, changes to the taxation system and public pressure. While some changes may seem to be harsh, there has been a more compassionate approach in areas such as the mental health of vulnerable debtors, something that was clearly absent from the debtors’ prisons of the nineteenth century. If it is necessary to contemplate bankruptcy it is surely a better environment in 2026 than 1844.
