- When setting up a business in Australia, appointing a public officer to operate and manage the business is a legal requirement.
- Frequently asked questions
- We allocated a public officer in our first meeting as a company but did not notify the ATO. We are about to lodge our first tax return; shall we tell the ATO then?
- I set up my new company, registering online for an ABN and tax file number, and appointing a public officer at the time. It then said that I had to send them a ‘Notice of appointment of a public officer’. Do I need to do this as well?
- I am just about to file my first company tax return and noticed the public officer declaration needs to be signed. I have not appointed one yet, what do I do?
- Setting up your new business in Australia?
When setting up a business in Australia, appointing a public officer to operate and manage the business is a legal requirement.
But the different officeholder roles within a business are varied and can be confusing, especially when you are an overseas company unaware of the regulations in Australia.
In this article, we’ll explain the role of a public officer and their legal duties and responsibilities in an Australian company.
Why do I need a public officer?
A Proprietary Limited (Pty Ltd) company requires director(s) and shareholder(s) to represent the company, understanding the different responsibilities these representatives hold is important for both compliance and to ensure the company is trading at its full potential.
For foreign companies seeking to set up an Australian subsidiary, a resident director needs to be appointed as well as a public officer if the entity is trading or operating as a company.
These positions need to be appointed to the correct person/s, and notified to the correct government agency, either the Australian Securities and Investments Commission (ASIC) or the Australian Taxation Office (ATO).
And under Australian taxation law, every company carrying on business or deriving property income in Australia must, unless specifically exempt, appoint a public officer.
Unfortunately, most of the questions we receive about this role are after the fact… when the company has been set up and the business owner wasn’t aware one must be appointed within the company’s first three months.
What is a public officer?
A public officer is the Company’s representative to the Australian Tax Office and is responsible for the Company’s obligations under the Income Tax Assessment Act 1936.
The appointee ensures the Company complies with the act and are liable for any violations. Ordinarily, a resolution is passed at a meeting of the directors appointing the public officer.
In many cases, the role’s holder is also the director of the Company.
What are their duties and responsibilities?
The public officer is answerable for everything that is required by the company for tax-related purpose and if in default, is liable to the same penalties.
Please note, they are not liable for the payment of tax due by the company.
Who can be a public officer?
The public officer must be a natural person of at last 18 years of age and must also be an ‘ordinary resident’ of Australia.
They must also have the capacity to understand the role and responsibilities that come with the appointment.
When do I appoint one?
A public officer can be appointed at the time of company registration.
If you have not appointed a person as a public officer at this time, you can nominate one within three months of the company commencing to carry on business (registration).
There are daily fines (as at 2018, the fine is $110 per day) for every day the business does not have a public officer appointed.
How do I appoint the public officer?
Usually, a resolution is passed at a meeting of the directors appointing the role.
The nominated person will need to sign a form or letter consenting to act as the company’s public officer (Penguin Management can provide this). This completed form should be filed with company documents.
The ATO form ‘Notice of appointment of a public officer’ needs to be completed and lodged with the ATO to inform them of the public officer.
Frequently asked questions
Here are some of the questions we receive regularly about appointing a public officer:
You should immediately advise the ATO of the appointment.
There are daily fines for not advising the ATO within three months of the new company formation, so the sooner you advise them the better.
No, if you advised the ATO at the time you registered your company, you do not need to complete the form again.
To double check, simply call the ATO to ensure that a public officer has been appointed.
Remember, you are liable for daily fines if you have not advised the ATO of your nomination.
Firstly, you should ensure you appoint one as soon as possible, as the ATO issues daily fines for not notifying them within three months of a new company formation.
To do this, lodge the form mentioned above with the ATO. Then you are free to lodge your tax return with your appointed officeholder signing the declaration.
Setting up your new business in Australia?
Still not sure if you need to appoint a public officer? Give us a call on +61 2 8298 5301 or contact us via the form on this page and we’ll be happy to check for you.
Need help? When Penguin Management helps your new business set up in Australia, we explain the officeholder’s positions you will need to fill and their responsibilities.
We can lodge the appropriate forms with the government agency, ensuring your business is compliant and you have established a correct legal entity.
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