Can a DPN include GST?

Short answer

Yes. A director penalty notice can include the company's net GST, along with luxury car tax and wine equalisation tax, for tax periods from April 2020 onward. GST sits alongside PAYG withholding and super guarantee charge as the three company debts that can become a director's personal liability. Income tax and PAYG instalments are not covered. See the director penalty notice guide.

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Which BAS amounts are in, and which are out

A BAS can carry several different liabilities, and only some of them can end up in a DPN.

BAS labelIn a DPN?
GST net amount (GST collected less credits)Yes
PAYG withholding from wagesYes
Luxury car tax, wine equalisation taxYes
PAYG income tax instalmentsNo
FBT instalmentsNo

The GST figure is the net amount for the period. If the company had more credits than GST collected, there is no GST liability to penalise for that period. The rest of the company's BAS debt is still owed, and the ATO can still chase the company for it, but it does not attach to you through a DPN.

The 3 month rule for GST

Whether the GST amount is lockdown or non-lockdown depends on when the BAS was lodged, not on when it was paid.

If the company has not lodged at all, the ATO can estimate the GST and issue a DPN for the estimate. Estimates are treated as never reported, so they are lockdown from the start. Lodging the real figures may reduce the amount but does not change the lockdown status.

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What this means for a company with GST debt

Since GST came into the regime, a business that is behind on BAS can generate a personal liability for its directors far faster than most expect. A single quarter of unpaid GST and PAYG withholding can easily be tens of thousands of dollars, and the two amounts land in the same notice.

Questions that usually matter:

For what happens to the company itself when GST goes unpaid, see what happens if you don't pay GST.

What to do next

  1. Check every BAS is lodged, including ones the company cannot pay, so future GST amounts stay non-lockdown.
  2. List each unpaid BAS by period with its lodgement date and work out which GST amounts are already lockdown.
  3. Talk to an adviser about whether the company can pay the DPN amounts first, or whether an insolvency option protects you.

Related questions

Does a DPN cover company income tax or PAYG instalments?

No. Director penalties apply only to PAYG withholding, net GST (with LCT and WET) and super guarantee charge. Company income tax, PAYG instalments and FBT are company debts that the ATO recovers from the company. They can still lead to a wind up application, but they do not become your personal debt through a DPN.

Can the ATO issue a DPN for GST it has estimated?

Yes. Where a BAS is not lodged, the ATO can make an estimate of the net GST and the estimate becomes the basis of the director penalty. Because an estimate is treated as an amount that was never reported, it is lockdown and only payment will remit it. Lodging the outstanding BAS is still worth doing, because it replaces the estimate with the actual figure.

GST on a DPN? Get your options checked

A specialist can separate what is lockdown from what is not and tell you what the company can still do.

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More questions: 16 Director penalty notice questions questions answered · Full guide: Director penalty notices

General information only - not legal, tax or financial advice. Consider advice from a registered professional about your circumstances.