Director liability for company tax dues requires statutory assessment, while the director must prove absence of fault.

Section 39 permits recovery of a company's tax dues from a director only after reasoned consideration of the company's available assets, the director's position when the tax became due, and the statutory conditions for personal recovery. Before proceeding against personal assets, the director's defence that non-recovery from the company was not caused by negligence, misfeasance or breach of duty must be examined. The burden of proving that absence of fault rests on the director, rather than on the Revenue. Personal recovery may proceed only after this statutory assessment and determination.

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Issues: Whether recovery of a company's tax dues from its director may be pursued under Section 39 after considering the company's assets and the director's statutory defence, and on whom the burden lies to establish absence of negligence, misfeasance or breach of duty.

Analysis: Section 39 permits recourse against a director in accordance with its statutory conditions. The director's assertions regarding available assets of the company, his status as director when the tax became due, and absence of negligence, misfeasance or breach of duty require consideration through a reasoned determination before recovery is initiated against personal assets. However, the burden of proving that non-recovery was not attributable to negligence, misfeasance or breach of duty rests on the director, not on the Revenue.

Conclusion: Recovery against the director's personal assets may be undertaken only after a reasoned consideration of the statutory conditions and his defence; the director bears the onus of establishing absence of negligence, misfeasance or breach of duty.

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