Raising a penalty assessment: deliberate trading without approval attributable to an officer of the company
The fact that a company officer fails to apply for approval on behalf of the company 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 eventually led to the deliberate failure to notify, and record your findings.
Before you start to ask them any questions about the failure to apply you must make sure that the individual company officer or officers are aware of their rights under Article 6 of the Human Rights Act, see CH300400 for general guidance on Human Rights.
Where there is evidence to identify the company officer or officers whose actions caused the deliberate failure to apply, 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 company officer(s) whose actions gave rise to the deliberate failure to apply. 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.