Mary Upton (Dublin South Central, Labour)
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Question 152: To ask the Tánaiste and Minister for Enterprise, Trade and Employment if she will advise on the responsibilities of the Companies Registration Office regarding the filing of annual accounts; the sanctions that apply to a company which fails to file accounts within the specified timeframe; the conditions under which a company may be restored to normal status, if it has been considered to be in breach of obligatory practices; the reason a company is considered to be in breach of conditions that would warrant striking off; and if she will make a statement on the matter. [4209/09]

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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The Companies Acts 1963-2006 sets out the requirements in relation to the filing of annual accounts by companies.

Filing Requirements

The Companies Acts require that an annual return be delivered by a company, whether trading or not, to the CRO once at least in every calendar year. Companies are required to attach a copy of their accounts to the annual return.

Sanctions for Late Filing or Failure to File

A late filing penalty of €100 becomes due in respect of an annual return on the day after the expiry of the filing deadline, i.e. 28 days after the effective date of the return. A daily penalty amount of €3 accrues thereafter up to a maximum penalty of €1,200 per return. This penalty is in addition to the standard fee for filing the return.

A company with a record of persistent late filing may also be subject to an on-the-spot fine and/or summary prosecution of the company and/or any officer in default. Fines of up to €1,904.61 can be imposed on conviction for breach of the annual return filing requirements.

The Registrar may prosecute companies and/or directors in the District Court for failure to file annual returns and accounts on behalf of their companies. In addition he may also apply to the High Court for an order directing the filing of outstanding annual returns and accounts within the period specified in the order and he may seek to have all the costs of and incidental to that application, borne by the defaulting company or its officers.

A company cannot avail of the exemption from the requirement for a statutory audit if its annual return for the current year or the previous year was not filed on time.

Strike-off

A company may be struck off the register and dissolved for failure to file an annual return. If a company is struck off, the assets of the company become vested in the Minister for Finance, and if the business continues to trade, the owners will no longer enjoy the benefit of limited liability and so are personally responsible for any debts incurred so long as the company remains dissolved.

Any person, who was a director of a company at the date of sending to that company of a strike off notice due to the non-filing of annual returns, may be disqualified from acting as a director by the High Court, where the company is struck off leaving outstanding liabilities. Such order may be made by the Court on the application of the Office of the Director of Corporate Enforcement. Restoration — Administrative

Where a company has been struck off for a period not exceeding 12 months, an application for restoration may be made by it to the Registrar of Companies. The company must file all outstanding annual returns, fees and the relevant late filing penalties within 12 months of the date of dissolution.

Restoration — High Court

A company that has been dissolved via strike-off, for a period in excess of 12 months and not more than 20 years, may apply to the High Court to be restored.

The applicant to the Court must obtain letters from the Registrar, the Chief State Solicitors Office (on behalf of the Minister for Finance) and the Revenue Commissioners stating there is no objection to the restoration of the company to the register.

If the High Court grants the Order and all outstanding annual returns (including required accounts) have been delivered to the CRO along with an official copy of the Order the company will be restored to the register.

If the Order has been granted and all outstanding annual returns (including required accounts) are delivered in final draft format only to the CRO the applicant must also provide a personal undertaking to file signed returns and accounts in identical form. In this case an Order for restoration will not have immediate effect unless the final signed returns (including accounts) are delivered to the CRO within one month from the date of the making of the Order. If the final returns are not submitted within the one month period the company will remain dissolved.

A creditor may also apply to the Court for restoration of the company at any time from the date of dissolution of the company until the expiry of 20 years from the date of dissolution of the company.