FHDDS51720 | Penalties, sanctions and offences: penalties – policy: Trading without approval - Company and company officer penalties: personal gain

Once you have attributed the deliberate trading without approval to one or more of the company officers, you should consider whether any of these company officers, by fact or implication, have gained or attempted to gain personally from the contravention. In the context of FHDDS this may be difficult to establish because it may not be possible to identify and quantify specific monetary gains arising from a failure to register for the scheme.

The recorded payment of normal salary, wages or dividends should not normally be regarded as the company officer gaining personally from the deliberate contravention.

If at the time you are issuing the penalty assessment to the company you decide that there is no personal gain and that therefore the penalty is not to be apportioned to any of the company officers, you cannot later pursue any of the company officers for payment of the penalty even if the circumstances subsequently change. For example, if there is no personal gain and you do not issue a notice of liability to the company officers, you cannot later apportion liability to the company officers if the company goes into liquidation.

This also means that you cannot change the proportion of the company’s penalty notified to any of the company officers, if the circumstances subsequently change.