Commentary on Sections Contribution notices where avoidance of employer debt Section 42: Section 38 contribution notices: clearance statements
160.An application may be made to the Regulator for the issue of a clearance statement. Subsection (2) specifies that a clearance statement is a statement made by the Regulator that in its opinion in the circumstances described in the application, the applicant would not be a party to an act or a deliberate failure to act falling within section 38(5)(a); it would not be reasonable to impose any liability on the applicant under a contribution notice; or such requirements under section 38 as may be prescribed would not be satisfied in relation to the applicant.
161.Subsection (3) provides that following an application for a clearance statement the Regulator may request further information from the applicant and may invite the applicant to amend the circumstances described in their application.
162.Subsection (4) requires the Regulator, as soon as reasonably practicable, to determine whether to issue the clearance statement, and, if it so determines, to issue the statement.
163.Subsection (5) specifies that a section 40 clearance statement is binding on the Regulator in relation to exercising the section 38 power to issue a contribution notice to the applicant unless the circumstances regarding the exercise of the section 38 power are not the same as the circumstances described in the application for a section 40 clearance statement and the differences in those circumstances is material to the exercise of the section 38 power.