A public officer acts as an official point of contact and representative of a company to the Australian Taxation Office (ATO). They are also responsible for ensuring the company meets its responsibilities under the Income Tax Assessment Act 1936 (Cth) (the Act). If a company fails to meet its obligations under the Act, the public officer may be personally liable for any penalties the company faces. This article answers some frequently asked questions about appointing a public officer.
Who Can Be a Public Officer?
A public officer must be:
- an individual who is at least 18 years of age;
- someone who ordinarily resides in Australia; and
- capable of understanding the nature of their appointment as a public officer.
Companies usually appoint the person with the most involvement in tax and accounting matters to the position of public officer. Often that person is either a director or accountant. However, the public officer does not need to be an employee of the company. There is no requirement for the company secretary to perform the duties of a public officer, as this is outside their duties. However, a company can appoint the same person to both positions.
When Should a Company Appoint a Public Officer?
A company must appoint a public officer within three months of beginning to carry on business or deriving income in Australia. The company must also notify the ATO of the appointment during the three month period. Penalties will apply if a company fails to follow these requirements.
How Does Appointing a Public Officer Work?
The company’s constitution or other governing documents will specify who can appoint a public officer on behalf of the company. Often, appointing a public officer occurs when the directors pass a board resolution at a meeting of the directors.
The company should ensure the person appointed as public officer provides consent in writing to act a public officer. The company should keep the written consent within company records. Once the public officer gives their consent, the company needs to notify the ATO of the appointment.
How Many Public Officers Can a Company Appoint?
A company can only appoint one public officer at a time. However, a public officer must represent the company at all times while carrying out business or deriving income in Australia.
What Happens if the Public Officer Changes?
A public officer may vacate their position in the following circumstances:
- resignation in writing;
- removal from office via the passing of a resolution;
- mental incapacity;
- no longer residing in Australia; or
- failure to meet any circumstances provided in the company constitution.
If a public officer vacates their position and consequently there is a change of public officer, the company must notify the ATO within 28 days of such changes.
It is important for a company to appoint a public officer to meet its obligations under the Act. It is essential to ensure that the person appointed as a public officer is eligible to take on such responsibility. Further, the company must appoint a public officer within the three-month time frame of operating as a business or deriving income and notify the ATO of any changes.
If you have any further questions or need assistance with appointing a public officer, get in touch with one of LegalVision’s taxation lawyers on 1300 544 755.
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