CRO position on District Court application for extension of time to file an annual return
The CRO has issued its position on District Court applications to extend the filing date when a company is late in filing its annual return.
The May 2016 Ezine includes the following:
"CRO Ezine 17th May 2016
DISTRICT COURT APPLICATIONS FOR EXTENSION OF TIME TO FILE AN ANNUAL RETURN
Under Section 343(5), Companies Act 2014, since 1 June 2015 it has been possible to apply for an extension of time to file an annual return to either the High Court or to the District Court.
Application to the District Court is made on notice to the Registrar by means of an Affidavit. If an Order is granted by the Court and the company files the annual return within the extra time specified by the Order, the documents will be deemed to have been received on time and the consequences of late filing (late filing penalties/loss of audit exemption) will not apply to that annual return.
The CRO has recently reviewed certain aspects of its role in the District Court process and, as a result, the following arrangements will apply with immediate effect:
(1) Section 343(7), Companies Act 2014, provides: "In respect of an annual return that is to be delivered on or after the commencement of this section, the court for the purposes of subsection (5) shall be the District Court for the District Court district where the registered office of the company is located or the High Court."
The Registrar has been advised that a company whose annual return should have been delivered before commencement of the Act on 1 June 2015, cannot apply to the District Court under section 343(5) for
an extension of time to file that annual return. The application in that case would have to be made to the High Court.
The Registrar will object to any application made in the District Court for an extension of time to file an annual return that should have been delivered prior to 1 June 2015.
(2) Paragraph (4) of SI No 256 of 2015 - District Court (Companies Act 2014) Rules 2015, requires that the Affidavit relied on in an application to the District Court shall explain why it has not been possible to prepare the annual return and set out, and verify, any facts supporting the reasons why the annual return was not delivered to the Registrar within the time permitted by sections 343(2) or 343(3), Companies Act 2014, and set out, and verify, any facts supporting any additional reasons why it is alleged that it would be just to make an Order extending time.
The Registrar reserves the right to object to any application in the District Court for such an Order where, in the opinion of the Registrar, the reasons provided in the Affidavit and the supporting facts do not explain or verify why it was not possible to deliver the annual return to the CRO within the time permitted by sections 343(2) or 343(3), Companies Act 2014, and are therefore not sufficient to warrant setting aside the company’s legal obligations under the Act.
(3) A dissolved company does not have a legal existence until such time that it is restored to the Register.
This means that a dissolved company cannot make an application to the District Court under section 343 to extend time to file its annual returns as it has no legal standing to make such an application. The Registrar will object to any application in the District Court for an extension of time to file an annual return that is made by a dissolved company.
Please note that the Registrar reserves the right to be represented in the District Court in any case where an application is made for an extension of time to file an annual return under section 343(5), Companies Act 2014.
Further information on the District Court process is available in CRO Information Leaflet No 39 and at Missed-Deadlines"
The material in this article is for general information purposes only and does not constitute legal or taxation advice. Specific legal and taxation advice should be sought before acting. All information and taxation rules are subject to change without notice.
No liability whatsoever is accepted by M. McLoughlin & Co. for any action taken in reliance on the information in this article
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