ATO Garnishee notice

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2 February 2019
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Below is a question I raised in February 2019
Hi,
My wife's mother passed away in January 2017.
My wife received an inheritance after probate in July 2017.
She used those funds towards a deposit and costs to buy a house in August 2017 that we live in.
On the title documents our conveyancing solicitor listed my wife as a 99% owner and myself as a 1% owner as I did not contribute any funds to the purchase.
This was necessary as I needed to be a signatory to the loan documents for her to qualify.
The mortgage is paid from my wife's own income from her personal Bank Account. We run other joint accounts that my income goes into.
I am contemplating filing for Bankruptcy due to an unsuccessful business venture. My wife was not an owner in the business.
Is there any likely hood that AFSA could try to assert that I have a greater interest than the 1% and move to have the house sold

The answer I received from James Maloney at the time.
If a bankruptcy trustee is appointed, then the trustee might try and assert a greater interest, but you are protected by the manner in which the property is held (ie. as tenants in common as opposed to joint tenants). I suspect that the trustee would attempt to realise the 1% share of the property along with any other assets of value.

I would suggest that you obtain financial and legal advice about declaring bankruptcy prior to doing so as it is often not as simple as you would think.

The situation has not changed up to this point.
The ATO has just begun to chase the amount owing with a couple of phone messages. There has been no contact for the past 3 years.
The final amount owing to the ATO is not yet established due to non lodged BAS periods. However they have done a Superannuation calculation with penalties and interest.
My question is should I decide to file for Bankruptcy now - I assume the advice I received in February 2019 will still stand.
My wife continues to pay the mortgage from her personal bank account.
We have no issue with my wife paying the 1% nett interest in the property at current property values.
I am concerned about a couple of articles I have read that talk about a potential for a Trustee to reject the percentage of ownership based on contribution by the Bankrupt partner to the joint household expenses.
As the 5th anniversary of purchasing the property is approaching in August, is it correct there is a threshold of 5 years for any potential claw back by a trustee?
Does the ATO need to serve me with some sort of demand notice with a period for me to respond before they proceed with a Garnishee notice?
Can you tell me the the steps the ATO would need to go through and how long that may take, prior to deciding to issue a Garnishee notice to my current employer?
 

Nighthelyn

Well-Known Member
24 September 2014
103
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Sydney
Hi Mark,

Not enough information to assess your case. I suggest you call national debt helpline who May refer you to a financial counsellor or get a more comprehensive profile of your situation - Contact Us - National Debt Helpline

I will still try to answer your questions, with some assumptions of your situation:

1. The consequence of your 99/1 owned home - your wife and the trustee would negotiate terms to buy out your 1% share of the property. Assuming your wife can prove the source of the funds used to buy the house (copy of probate, bank statements, and assuming there is no questionable funds flowed from you to her that could be construed at you trying to defeat actions from creditors, claw-bacK actions by a trustee that require your wife to defend does not sound likely. Also, ATO may garnishee on any such arrangement meaning the amount arranged may be >1% (See below).

2. ATO garnishee notice and order power - normally, a creditor would need to obtain a judgement before it can apply to have some form of garnishee to recover money from a third party. ATO doesn’t need to do that - and even though usually it would issue a warning notice to you the debtor before issuing such garnishee notice, there is no law requiring them to do so and they may not issue warning to you if they think you are likely to try to defeat it. However, ATO does not use this power lightly and is required to have regard of your financial viability and for things like salary if they do it will not likely be above 30% of your wage (assuming no special factors). ATO if they become aware of your bankruptcy would likely participate or even issue garnishee in any property sale including one related to your wife’s buy out of your 1%.

You should also know ATO garnishee could be ongoing in other words it is not removed even if you become bankrupt. As such in most situation it is more appropriate to contact ATO to work with them rather than ignore.

More information - ATO practice and administration notes (esp 106-119) Legal Database

Good luck!

-Nighthelyn