Peadar Tóibín (Meath West, Sinn Fein) | Oireachtas source

I move amendment No. 78:

In page 228, to delete lines 16 to 35, to delete page 229, and in page 230, to delete lines 1 to 6 and substitute the following:“226. The Act of 1990 is amended by inserting the following in Part X:

“205E. (1) In this section—

‘amount of turnover’ and ‘balance sheet total’ have the same meanings

as in section 8 of the Companies (Amendment) Act 1986;

‘relevant obligations’, in relation to a company, means the company’s obligations under—

(a) the Companies Acts,

(b) tax law, and

(c) any other enactments that provide a legal framework within which the company operates and that may materially affect the company's financial statements;

‘tax law’ means—

(a) the Customs Acts,

(b) the statutes relating to the duties of excise and to the management

of those duties,

(c) the Tax Acts,

(d) the Capital Gains Tax Acts,

(e) the Value-Added Tax Act 1972 and the enactments amending or

extending that Act,

(f) the Capital Acquisitions Tax Act 1976 and the enactments

amending or extending that Act,

(g) the statutes relating to stamp duty and to the management of that

duty, and

(h) any instruments made under an enactment referred to in any of paragraphs (a) to (g) or made under any other enactment and relating to tax.

(2) This section applies to—

(a) a public limited company (whether listed or unlisted), and

(b) a private company limited by shares, but it does not apply to a company referred to in paragraph (a) or (b) that is of a class exempted under section 48(1)(j) of the Act of 2003 from this section or to a company referred to in paragraph (b) while that company qualifies for an exemption under subsection (9).

(3) The directors of a company to which this section applies shall, as soon as possible after the commencement of this section or after this section becomes applicable to the company, prepare or cause to be prepared a directors’ compliance statement containing the following information concerning the company:

(a) its policies respecting compliance with its relevant obligations;

(b) its internal financial and other procedures for securing compliance with its relevant obligations;

(c) its arrangements for implementing and reviewing the effectiveness of the policies and procedures referred to in paragraphs (a) and (b).

(4) The directors’ compliance statement (including any revisions) must—

(a) be in writing,

(b) be submitted for approval by the board of directors,

(c) at least once in every 3 year period following its approval by the board, be reviewed and, if necessary, revised by the directors, and

(d) be included in the directors’ report under section 158 of the Principal Act.

(5) The directors of a company to which this section applies shall also include in their report under section 158 of the Principal Act a statement—

(a) acknowledging that they are responsible for securing the company’s compliance with its relevant obligations,

(b) confirming that the company has internal financial and other procedures in place that are designed to secure compliance with its relevant obligations, and, if this is not the case, specifying the reasons, and

(c) confirming that the directors have reviewed the effectiveness of the procedures referred to in paragraph (b) during the financial year to which the report relates, and, if this is not the case, specifying the reasons.

(6) In addition, the directors of a company to which this section applies shall in the statement required under subsection (5)—

(a) specify whether, based on the procedures referred to in that subsection and their review of those procedures, they are of the opinion that they used all reasonable endeavours to secure the company’s compliance with its relevant obligations in the financial year to which the annual report relates, and

(b) if they are not of that opinion, specify the reasons.

(7) For the purposes of this section, a company’s internal financial and other procedures are considered to be designed to secure compliance with its relevant obligations and to be effective for that purpose if they provide a reasonable assurance of compliance in all material respects with those obligations.

(8) Where the directors of a company to which this section applies fail—

(a) to prepare, or to cause to be prepared, a directors’ compliance statement as required by subsections (3) and (4)(a) to (c),

(b) to include a directors’ compliance statement in the directors’ report as required by subsection (4)(d), or

(c) to comply with subsections (5) and (6), each director to whom the failure is attributable is guilty of an offence.

(9) A private company limited by shares qualifies for an exemption from this section in respect of any financial year of the company if—

(a) its balance sheet total for the year does not exceed—

(i) €7,618,428, or

(ii) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount,

and

(b) the amount of its turnover for the year does not exceed—

(i) €15,236,856, or

(ii) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount.

205F.(1) The auditor of a company to which section 205E applies shall undertake an annual review of—

(a) the directors’ compliance statement under subsections (3) and (4) of that section, and

(b) the directors’ statement under subsections (5) and (6) of that section, to determine whether, in the auditor’s opinion, each statement is fair and reasonable having regard to information obtained by the auditor, or by an affiliate of the auditor within the meaning of section 205D, in the course of and by virtue of having carried out audit work, audit-related work or non-audit work for the company.

(2) The auditor shall—

(a) include in the auditor’s report appended to the company’s annual accounts a report on, and the conclusions of, the review undertaken under subsection (1), and

(b) where any statement reviewed under subsection (1) is not, in the auditor’s opinion, fair and reasonable—

(i) make a report to that effect to the directors, and

(ii) include that report in the auditor’s report appended to the annual accounts.

(3) Where, in the auditor’s opinion, the directors have failed—

(a) to prepare, or to cause to be prepared, a directors’ compliance statement as required by section 205E(3) and (4)(a) to (c),

(b) to include a directors’ compliance statement in the directors’ report as required by section 205E(4)(d), or

(c) to comply with section 205E(5) and (6), the auditor shall report that opinion and the reasons for forming that opinion to the Director of Corporate Enforcement.

(4) Section 194(6) applies, with the necessary modifications, in relation to an auditor’s compliance with an obligation imposed on him by or under this section as it applies in relation to an obligation imposed by or under section 194.

(5) A person who contravenes this section is guilty of an offence.”.”.

Three dissenting voices have centred around this element of the legislation, namely the Office of the Director of Corporate Enforcement, ODCE, the Revenue Commissioners and the Irish Congress of Trade Unions, ICTU. One of the main complaints about this Bill is that it has been so long coming to the fore that it reflects much of the thinking of pre-crash Ireland. We have learned much since then, especially that light-touch regulation can cost an economy dearly. When ICTU, the ODCE and Revenue are agreed on a provision of the Bill it is important for the Oireachtas to take notice of it.

The OCDE stated it was not prepared to endorse the mitigated directors' compliance statement provision recommended by the company law review group for the following reasons. As the body responsible for encouraging compliance with company law, including the preparation of books of account which give a true and fair view of a company’s state of affairs, the ODCE finds unacceptable a proposal which omits reporting on obligations that may materially affect the company’s financial statements. The proposal that a company may rely at the directors' discretion on internal or external advisers to help secure compliance is unnecessary. It would also institutionalise a heavy advisory cost. The provision of the auditor review of the directors' compliance statement has been entirely deleted, which was a key recommendation of the auditing review group. The proposal that a company has in place appropriate arrangements or structures to secure compliance is unclear. It appears possible that the appropriate structure can be independent of any arrangements of procedures for securing compliance. The proposed definition of material compliance no longer requires the arrangements of structures to be placed.

Section 44 of the 2003 Act is considered by many of these organisations to be superior.

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