CH75540 - Penalties for failure to notify: other penalty issues: company and company officer penalties: deliberate failure to notify attributable to an officer of the company
Where a failure to notify is attributable to a company officer
The fact that an officer, see CH75580, fails to notify on behalf of the company, see CH75560, is not in itself evidence that the failure is attributable to that officer’s deliberate action.
During the course of your compliance check, you should examine the underlying actions or inactions that resulted in the deliberate failure to notify, and record you findings.
Before you start to ask them any questions about the failure to notify you must make sure that the individual officer or officers are aware of their rights under Article 6 of the Human Rights Act, see CH300400.
Where a company officer is liable to a penalty for a failure to notify that is attributable to them
Where there is evidence to identify the officer or officers whose actions caused the deliberate failure to notify, these officer(s) will be liable for payment of all or part of the penalty when any of the specific circumstances below apply
- there is evidence that the officer gained or attempted to gain personally from the deliberate failure, see CH75590, or
- the corporate body is insolvent, see CH75610, or
- there are grounds to suspect that the corporate body may become insolvent, see CH75610.
There will be cases where there is no evidence of actual or attempted personal gain by the officer(s) whose actions gave rise to the deliberate failure to notify. In those cases you must not pursue the officer or officers for payment of all or part of the penalty unless the company is insolvent, or there are grounds to suspect that it may become insolvent.
FA08/SCH41/PARA22 (1) & (2)