Annual Returns and the new Companies Act
There are a number of changes in the new Companies Act 2014. The new Act commenced on the 1st June 2015. Some of the terms used in the Act have been revised, for example, the “accounts” that are submitted to the CRO are referred to as “Financial Statements” and are described as such throughout.
Form B1 has extensive changes under the new Act.
Audit exemption is set out in Chapter 15 of Part 6 Companies Act 2014 starting out with section 358 which sets out the conditions for qualification as being audit exempt for a small company. Under the new Act to qualify for the audit exemption, the company must qualify as a small company. Also the company must not be late in filing its annual returns. Late filing will prevent the company from claiming the exemption.
There is a new audit exemption available for groups (section 359) and an audit exemption available to dormant companies (section 365) which are not available under the previous Companies Acts. Under the new Act, Guarantee companies can qualify for the audit exemption.
If one or more of the company’s shareholders representing not less than 10% of the voting rights (one member for a public guarantee company – CLG) request that the company not avail itself of the exemption and serve notice in writing to this effect on the company in the financial year immediately preceding the financial year concerned or during the financial year concerned but not later than one month before the end of that year, the company must have an audit. (s.334, CA 2014).
Qualification as a Small sized company
The qualifications have changed in the new Act. To qualify as a small company and avail of this exemption, a company must satisfy two or more of the following conditions in the current financial year and in the preceding financial year (unless it is its first financial year)(s.350(2), (3) & (5) Companies Act 2014):
- Balance sheet total does not exceed €4.4m
- Turnover does not exceed €8.8m
- Number of employees does not exceed 50
- (Exemption is not available to public companies except CLGs (Companies Limited by Guarantee).
Qualification as a Medium sized company
The qualifications for a medium sized company are changing in the new Act. To qualify as a medium company a company must satisfy two or more of the following conditions in the current financial year and in the preceding financial year (unless it is its first financial year) (s.350 (2), (4) & (6) Companies Act 2014:
- Balance sheet total does not exceed €10m
- Turnover does not exceed €20m
- Number of employees do not exceed 250
- A medium company can claim exemption from filing full Financial Statements and instead file abridged Financial Statements (the “abridgement” exemption) (s.352).
Qualification as a Group for audit exemption
Audit Exemption applies to any group company if the group as a whole qualifies as a Small Group. The entire group and all its subsidiary undertakings must, taken as a whole, satisfy two of the following 3 conditions in order to claim a Group Company Audit Exemption:
- The balance sheet total, in relation to the holding company and the other members of the group taken as a whole does not exceed €4.4 million.
- The amount of turnover of the holding company and the other members of the Group taken as whole does not exceed €8.8 million.
- The average numbers of persons employed by the holding company and the other members of the group taken as a whole does not exceed 50.
The above conditions must be met in the year (the conditions must also be met in the preceding year unless it is the holding company’s first financial year.) (s359 (5) CA2014). The company’s annual return, to which Financial Statements are attached, must be filed correctly and on time for the year in question and the previous year (s.364 CA2014).
Penalty Waivers – extension of time to file
Please note that from the commencement date (1st June 2015) of the Companies Act 2014, applications for an extension of time to file an annual return can be made through the District Court as per section 343(5) of the Act. The costs of making an application to the District Court are far less than the High Court (which is currently the court prescribed).
The District Court will (on notice to the Registrar) hear applications for an extension of time to file the annual return and may make an Order extending the time to file. Where a company files such an Order with the CRO within 28 days of the Order being made, and subsequently files the annual return within the extra time specified by the District Court, the documents will be deemed by the CRO to have been received on time. As a result, the consequences of late filing (late filing penalties / loss of audit exemption) will not apply to that annual return. Further information on this process will be posted in due course.
From 1st June 2015 CRO will no longer be engaging in correspondence with companies appealing the application of penalties as a result of the late filing of an annual return. Instead, companies who need more time to file their annual return should make an application to the District Court in the district court area where their registered office is situated.
- Section 343(5) of the Act will not apply to an annual return which has already been delivered to the CRO at 1 June 2015.
Exemption from Filing Financial Statements with the CRO
The following companies may claim an exemption from filing Financial Statements with their annual return (a B1 Form will still be required to be filed with the CRO);
- Designated Activity Companies (DACs) formed for charitable purposes who stand exempt from filing Financial Statements with the CRO by an order made by the relevant authority. (The Charities Regulatory Authority (CRA)).
- Companies Limited by Guarantee (CLGs) formed for charitable purposes and stand exempt from filing Financial Statements by an order made by the relevant authority (CRA).
Non-designated Unlimited Companies (ULCs) (private unlimited companies) can claim an exemption from filing Financial Statements.
Revision of Financial Statements
Where copies of the original Financial Statements or original director’s report have been laid before the company in a general meeting or delivered to the Registrar, all revisions should be made with reference to s.366 to s.379, CA 2014. If the company becomes aware of an error in the Financial Statements, they should correct the error and file the corrected documentation with the CRO not more than 28 days after the date of revision.
The Form B1X will be used when filing revised Financial Statements.
The revision can be in any of the following forms depending on what type of error is being revised
- a Supplementary Note; or,
- a revised Directors’ Report: or,
- revised Financial Statements. The revisions to the Financial Statements must be signed and dated in the same manner as the original Financial Statements and a revision by Supplementary Note should be signed in the same manner as the original Balance Sheet (s.368 CA 2014).
- Changing a company’s Financial Year end Under s.288 Companies Act 2014, a company may, by filing a form B83 with the Registrar, apply to alter its current or its previous financial year end date by not more than six months, which will then become its financial year end date for the future. Such an application may only be made once in every five years unless the company is exempted by section 288(10) Companies Act 2014.
- The revised Financial Statements or Directors’ Report shall become the company’s statutory Financial Statements or Directors’ Report for the relevant financial year from the date of their approval by the Directors of the company (s.373 CA 2014). The original Financial Statements or Directors’ Report shall remain on the Register (s.376(6) CA 2014).