Phoenix Activity: Recommendations on Detection, Disruption and Enforcement

Abstract

Phoenix activity occurs where the business of a failed company is transferred to a second (typically newly incorporated) company and the second company’s controllers are the same as the first company’s controllers. Phoenix activity can be legal as well as illegal. Phoenix activity is illegal where the controllers’ intention is to shift assets from the predecessor company to the successor company to avoid liabilities such as unsecured debts, employee entitlements, taxes, adverse court judgments and fines. Phoenix activity has become a significant concern for governments because of the number of individuals promoting illegal phoenix activity, the significant loss of tax revenue it causes, and the recognition of the potentially devastating impact it has on creditors and employees. This report is the third by the authors dealing with phoenix activity. The first report examines the various historical attempts to define phoenix activity and identifies five categories of phoenix activity ranging from legitimate business rescue to complex illegal phoenix activity and provides examples of each. The second report captures all available data relating to the incidence, cost and enforcement of laws dealing with illegal phoenix activity. In this report, the authors propose reforms aimed at better detection, disruption, punishment and deterrence of illegal phoenix activity.