The best explanation of a public officer

Dealing with the Australian Taxation Office (ATO) as a business owner comes with its challenges, especially when you’re already juggling a busy schedule! Most organisations choose to appoint a designated person to handle any matters regarding compliance to laws and regulations, including those associated with the ATO. This role is known as a public officer (PO). This blog post by Business Kitz is designed to take you through what exactly a public officer is, the specific duties and responsibilities they have, requirements, and why it is necessary to appoint someone for the role!

What are the key things to remember?

• Organisations are required by law to have a public officer

• There are specific requirements surrounding who can be appointed

• The person appointed as public officer can change, but the ATO must be notified within 28 days of the new appointment. 

What is a public officer? 

A public officer is a company’s representative to the ATO and is responsible for upholding the company’s obligations under Section 252 of the Income Tax Assessment Act 1936, which states that: “Every company carrying on business in Australia, or deriving in Australia income from property, shall at all times, unless exempted by the Commissioner, be represented for the purposes if this Act by a public officer duly appointed by the company or by its duly authorised agent or attorney, and with respect to every such company and public officer”.

The appointed person is required to handle and deal with any matters regarding the ATO and the company’s taxation affairs such as record keeping and submitting company returns. 

Organisations are required to appoint a public officer within 3 months of the company commencing business or deriving an income in Australia. If a company fails to appoint one within the stipulated 3 month period, this is considered an offence. Penalties are up at $210 a day, for each day past the 3 month deadline. 

What are the specific requirements for someone to be a public officer? 

The individual that a company appoints as their public officer must meet the below criteria:

• Is at least 18 years old
• Resides in Australia 
• Understands the nature of the appointment 

The appointed officer must be recorded as the “public officer” for the entity on ATO systems, and must be able to confirm their identity at contact.

Can my accountant be nominated?

Ideally, yes – your accountant can be nominated as a company’s public officer. Companies should appoint the person with the most involvement and experience with tax and accounting matters to the position. However, this does not mean that you cannot outsource a public officer. It is perfectly acceptable to nominate someone that is not part of the organisation. 

How do I appoint a public officer, and what is the process? 

The process of appointment is based on the organisation’s own rules or articles of association determining who can be appointed on behalf of the company. This process occurs when the directors of the board pass a ‘board resolution’ at a meeting of the directors. 

Upon notifying the ATO, the company has to first ensure that the person who has been appointed has provided written consent to serve as the public officer. The company must always keep a copy of their written consent within the company’s records. Once consent has been affirmed, the company can notify the ATO of the appointment. This is done via completing and lodging the ‘Notice of appointment of a public officer’ form.

Can the person in the role change?

The position may be vacated for various reasons such as: 

• Death 
• Resignation in writing 
• Removal from office via the passing of a resolution 
• Bankruptcy 
• Mental incapacity 
• No longer resides in Australia 
• Failure to meet any circumstance provided in the company constitution. 

When the directors of a company decide who will be appointed as the new officer, the company must notify the ATO of these changes within 28 days of the new appointment. 

Legal advice

Whether you have started to build your own company or take one over, appointing a public officer will always be required by law within the first three months of commencing business. The requirements of the role must be met at all times and penalties may apply if a company fails to do so. Businesses must always remember that this position is totally changeable, and if a business wishes to do so, the ATO must be informed at all times as soon as possible. 

If you are still unsure of the legal obligations of a public officer, our sister company, Legal Kitz , are here to help! You can book a free 30-minute consultation with their experienced and highly qualified team via our website now.