10 Nov 2018

The Rise of the Phoenix

"He who was but now the sire comes forth from the pyre the son and successor;
Between life and life lay but that brief space wherein the pyre burned."
Claudian, The Phoenix  (Roman poet, 4AD) 

 By Gi Linda -

According to legend heard at Heliopolis in Egypt, there exists a fabulous bird called the phoenix, like an eagle, with feathers of red and gold. When this bird's life draws to a close he builds a funeral pyre, commits himself to the flames and dies. Out of self-immolation a maggot emerges and a new phoenix appears on the fiery altar

In modern commerce the phoenix bird is an icon, inspiring businesses burned by debts to rise from the ashes of destruction and continue trading under a different name, leaving their creditors behind

Phoenixing is illegal, but that's not much of a deterrent, and it's become a booming business for delinquent company directors and their facilitators, insolvency liquidators, lawyers and judges.

As the Australian government promises to legislate new phoenix offenses to deter illegal phoenixing, a case now in Qld Federal Court is challenging alleged phoenix moves by Vincents liquidator Steven Staatz and company director Adrian Brennock, that involves 21 defrauded investors who paid more than $2 million as intended co-owners of property in a NSW community land-share venture.

The economic impact of illegal phoenix activity

An Australian Inter-Agency Phoenix Taskforce made up of 29 government agencies aims to reduce the impact of illegal phoenix activity. In July 2018, the Phoenix Taskforce published a report, The Economic Impacts of Potential Illegal Phoenix Activity, that defines as illegal phoenix activity the deliberate and systematic liquidation of a corporate trading entity which occurs with the intention to continue the operation and profit taking of the business through other trading entities, while avoiding liabilities:

"Phoenix companies arise from the ‘ashes’ of a collapse of a commercial entity, leaving behind a trail of avoided outstanding payments to tax authorities, creditors, businesses, customers and employees."

According to the report, the annual impact of illegal phoenix activity is now over $5 billion a year

Thirteen Commonwealth government agencies, including ASIC, the ATO and  Fair Work Ombudsman have powers to investigate and prosecute "phoenix activity" or "phoenixing". But usually they don't.

Australian courts have absolute authority to stop illegal phoenix activity and to impose penalties on delinquent directors and liquidators. But, usually they don't, as self-represented defrauded investors challenging Vincents' liquidator Steven Staatz discovered when a Brisbane Federal Court Judge refused to hear their evidence of phoenix activity, and slapped a suppression order on their request for justice.

Curbing the Flight of the Phoenix describes how phoenix moves are used by companies in insolvency to divest liabilities:

"Like the mythical bird that dies and then resurrects, phoenixing is the deliberate liquidation of a company to avoid paying tax, creditors or employees and then the ‘resurrection’ of the business through a different entity. It is illegal. The negative impact of insolvency is magnified by phoenixing, which enables a company that owes money to creditors and employees to restart without paying its debts.
 
"Regulators are aware of the problem. ASIC announced in September it will conduct surveillance of 1,400 target companies and approximately 2,500 individuals... Concurrently, the ATO announced it will investigate 2,000 property developers..."

Jotham Lian reports at accountantsdaily.com.au:

Suspected dodgy advisers, directors head to court after ATO swoop

"The Federal Court has commenced public examinations on entities connected to a dodgy pre-insolvency adviser, in a move welcomed as shining the light on illegal operators.

"ATO deputy commissioner Will Day has confirmed that more than 45 service providers, clients, employees, and alleged ‘dummy directors’ of phoenix companies connected to pre-insolvency adviser Philip Whiteman will be examined in the Federal Court on the grounds of suspected promotion and facilitation of phoenix activities and tax schemes."

Until now very little has curbed the rise of the phoenix as companies in default increasingly use liquidation as a means to divest liabilities.

Australian Restructuring Insolvency & Turnaround Association (ARITA) chief executive John Winter told Accountants Daily:

“These unregulated and almost-always unqualified advisers promote their wares to often unsuspecting people who are in financial distress, and what they offer them is generally illegal solutions...They are a scourge on the economy, ripping off creditors, employees and taking advantage of people at their weakest moments. The message needs to be sent to these so-called advisers and the directors who use them that they will be found out and prosecuted.”


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