Liquidations under New Companies Act 2014

The Companies Act 2014 (“the Act”) commenced on 1st June 2015. These processes replace the Companies Acts 1963-2013 and only the new procedures should be followed from this date. This page provides a brief outline of the process. It isn’t a complete statement of law. 

There are a number of changes to the procedures regarding the submission of liquidation documents. There is now also a qualification necessary to become either a liquidator or examiner.

Three types of Liquidation
Liquidation is still by Members voluntary winding up, Creditors voluntary winding up or by Court winding up.  See information leaflet no. 38. Option to voluntarily strike-off company now formalised. The court winding up procedure is being changed and court appointed liquidators will follow Creditors voluntary winding up procedures. 

Main changes

  • Liquidators are now required to be qualified
  • Cannot have been officer or employee within 2 years prior to liquidation (previously 1 year under Companies Acts 1963-2013)
  • Period for liquidation documents to be filed have now changed or form requirements have been altered
  • Liquidations by Court may be directed to follow creditors winding up procedure
  • Statutory document submitted to CRO to indicate that liquidator has resigned.
  • Form E1 can be completed under Summary Approval Procedure.

Qualification for appointment as liquidator/provisional liquidator/examiner

Under the previous Companies Acts, there were no formal qualifications necessary for the appointment as liquidator. The new Companies Act does require qualifications for appointment as either liquidator and examiner.

Supervisory Authority: The Irish Auditing and Accounting Supervisory Authority

Address: Willow House, Millennium Park, Naas, County Kildare  

Ph: 045 983600         Fax: 045 983 601               Email: info@iaasa.ie         Website: www.iaasa.ie

Qualification Category  
 Category 1 Member of Prescribed Accountancy Body
 Category 2 Practising Solicitor
 Category 3 Member of Professional Body recognised by IAASA
 Category 4 Person qualified under the laws of other EEA state
 Category 5 Person of practical experience

Liquidations initiated prior to Companies Act 2014
A liquidator (including a provisional liquidator) can continue to act, in a winding up where the appointment was made prior to the Companies Act 2014’s commencement. (i.e The Act does not affect the appointment of liquidator in any case which was started prior to the new Act).

If a liquidator is applying to act as a liquidator to a company under category 5 (Person of Practical experience), the liquidator can continue to act as liquidator to a company where the appointment was made prior to the introduction of the new Act, even where that application has been refused. (i.e. the new Act does not affect the appointment of a liquidator in any case which was started prior to the new Act).

Category 1 - Member of a prescribed accountancy body

The person is a member of a prescribed accountancy body, being a person who –

  •  holds a current practising certificate issued by that body; and
  •  is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from acting as a liquidator. 

Category 2 - Practising solicitor

The person is a solicitor, being a solicitor who –

  • holds a current practising certificate issued by the Law Society of Ireland under the Solicitors Acts 1954 to 2002; and
  • is not prohibited by virtue of regulations made by the Law Society of Ireland, or a decision or order made

Category 3 - Member of other professional body recognised by IAASA

The person is a member of such professional body as the IAASA may from time to time recognise for the purposes of this section, being a person who –

  • is authorised for the time being by that professional body to pursue the particular activities that that body aims to promote or foster or as respects the pursuit of which by its members that body
  • has been established to represent ; and
  • is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from  acting as a liquidator.

Category 4 - Person qualified under the laws of other EEA State

The person is entitled under the laws of an EEA state, (other than Ireland), to act as a liquidator in insolvency proceedings and the qualifications held by, or the circumstances otherwise relating to the person, that entitle him or her so to act are ones that by virtue of any Community act, entitle him or her to act as a liquidator in the State.

Category 5 - Persons with practical experience of windings up and knowledge of relevant law

The person -

  • having made application in that behalf to the IAASA in the prescribed form within 2 years after the commencement of this section; and
  • paid the prescribed fee and stands authorised for the time being by the Supervisory Authority to be so appointed, such authorisation having been granted on the grounds that each of the following is satisfied:

(i) the person has, prior to the commencement of this section, obtained adequate relevant experience of the winding up of companies and knowledge of the law applicable thereto by virtue of the person’s either -

            1. having been–

(A) employed in relevant work by a person who at the relevant time fell (or, if this section had been in operation at that time, who would have fallen) within categories 1, 2 or 3; or

(B) engaged on his or her own account in relevant work; or

2. having practised in an EEA State (not being the State) as a liquidator;

(ii) the person is, in the opinion of IAASA, after consultation with the ODCE, a fit and proper person to act as a liquidator; and

(iii) the person does not fall within categories 1, 2, 3 or 4.

Period for liquidation documents to be filed have now changed or form requirements have been altered

Form E4, liquidator’s affidavit and section 682 accounts - is not required if the winding up continues for a period of less than 12 months. However, if the winding up continues for longer, Form E4 must be filed for the initial period of 12 months and each subsequent six-month period, and any lesser period, up to the date of the close of winding up (date of final meeting on Form E6). Form E4 has a filing fee of €15. The form E4 must be submitted within 14 days of the anniversary to the CRO. This change affects member's voluntary winding up, creditor's voluntary winding up and court winding up.

Court Winding Up

A company can be wound up by the Court at the instigation principally of any member or creditor of the company or the Minister in appropriate circumstances. The Court appoints the liquidator and he/she becomes an officer of the Court and works under its supervision. (The Court, used in relation to a company, means the High Court). The court may direct that the liquidation continue using the rules relating to a Creditors Voluntary Winding Up.

Statutory requirements

A petition must be presented to the Court and when a winding up order is made a certified copy must be delivered to the CRO. The court order is now delivered to the Registrar of Companies by the Registrar of the Court. (See Section 7 regarding grounds for winding up by the Court). The liquidator, when appointed, must publish a notice of his/her appointment in Iris Oifigiúil (section 586 following creditors winding up procedures). A copy of any other subsequent order annulling or staying the winding up or dissolving the company must also be delivered for registration

Forms to be delivered in a winding up by the Court

Forms to be Filed  Description Filing Fee Time to  be delivered  Period to be covered
Court Order Court Order to wind up and appoint the liquidator Sent to the CRO by an officer of the Court  
 E3 Liquidators account of his/her acts and dealings  €15 Within 7 days of 
presentation at     
meeting
12 month periods. Any   
lesser period to end of 
liquidation need not be      
covered.
 E4 Liquidators affidavit and accounts  €15 Within14 days of completion of period First 12 months and      
thereafter every 6 months 
and also any lesser period
to end date of liquidation
 E5 Statement of account  €15 Within 7 days of meeting  Only submitted if following Creditors procedure
 E7 Return of Final Meeting  €15 Within 7 days of meeting Only submitted if following Creditors procedure 
 Court Order Court Order to cease liquidation and dissolve company  €15 Within 21 days Submitted where court directs. (Such companies would not be following creditors procedure).
 

Resignation/Removal/Appointment

A liquidator when appointed to a company files form E2 as notice of that appointment.

Under the new Act, where a liquidator then resigns from the company, a form E2a must be submitted. If the liquidator was instead removed from the company, form E2b can be submitted. Thereafter, if/when a new liquidator is appointed they would file form E2c to acknowledge their appointment to the company.

FAQ's regarding New Act

Do I have to be qualified to act as an examiner or liquidator?
Yes. Under the Companies Act 2014, there are certain qualifications necessary prior to a person being able to act as liquidator or examiner. There are four areas in which someone can be qualified in order to act as either liquidator or examiner. Please see information leaflet no.38 regarding qualifications and disqualifications. The qualification does not refer to any liquidation that was started prior to the commencement of this Act.

Is it possible to stop the liquidation and begin trading again?
A company can return to Normal status and recommence trading but only following an order of the High Court. See information leaflet no.38

Have the procedures been changed in relation to filing liquidation documents with the Registrar?
Yes in relation to all three procedures, members voluntary winding up, creditors voluntary winding up and court liquidations, the documents to be filed and the periods that they must cover have been altered. Please see sections 4.1, 4.2 and 4.3 of information leaflet no. 38.

How do I apply for a company to be placed in court liquidation?
A creditor can apply to the High Court to wind up a company where certain criteria are met. Please see section 6 of information leaflet 38. In a voluntary winding up, it is the company that places itself in liquidation, whether it is able to pay off all of its debts (members voluntary winding up) or where the company is insolvent (creditors voluntary winding up).

When is a company unable to pay its debts?
If a creditor is owed over €10,000 and the sum remains unpaid after three weeks, application can be made to the court for the liquidation of a company. Please see information leaflet no.38.

Do I have to file annual returns once a company has gone into liquidation?
No. When a company commences a winding up, the company ceases to carry on its business and the powers of the directors of the company cease. Instead the appointed liquidator files his/her own set of periodic accounts. However, it is important that the liquidation documents are filed correctly with the CRO. If the resolution hasn’t been registered, the company status remains as “Normal” and the company could be subject to strike-off/prosecution procedures. So it is important to file the outstanding documents.

What if my declaration of solvency E1 is ineffective?
If ineffective, the company is deemed to be in a Creditors voluntary winding up rather than a members Voluntary Winding Up and it would necessitate application to the High Court. Therefore it is very important to file the document correctly.

Can I convert a Members liquidation into a Creditors Liquidation?
Yes. Please see section 4.1.2  Information leaflet no. 38 where a company becomes insolvent and it is necessary to change the liquidation type from members to creditors.

Can foreign companies be wound up?
Yes. However only the High Court can wind up an external company. An external company cannot be placed in voluntary winding up.

Do I have to go through the liquidation process to dissolve a company?
No. Companies can also be struck off the register, whether involuntarily or voluntarily. Please see information leaflet 28 regarding the voluntary strike off process. It is not available to all companies and is not available to companies which have assets or liabilities.