Court Proceedings

 

Every company, whether trading or not, is obliged to file an annual return (Form B1) with the CRO once at least in every year. Companies and their advisers should note that a company may be struck off the register by the Registrar of Companies if it has failed to file an annual return in respect of any ONE year.

Voluntary Strike-Off: In relation to a voluntary strike-off request by the company to the registrar, (where the company has filed a form H15), the request for strike-off can be stopped where the company requests to do so by submitting form H17.

Any other party can request that the VSO be halted by submitting form H16 and stating the grounds on which the strike-off is being objected to. Only a request under one of these grounds will be acceptable to prevent to the strike-off. The form must be submitted within 90 days of the strike-off being initiated in order to prevent the completion of the strike-off process.

The grounds for objection stem from section 732 of the Companies Act 2014 and one of the grounds for the application for voluntary strike-off must not have been satisfied.

(a) the circumstances relating to the company are such as to give the Registrar reasonable cause to believe that it has never carried on business or has ceased to carry on business;
(b) the company has, within 3 months before the date of the application, by special resolution—
(i) resolved to apply to the Registrar to be struck off the register on the ground that it has never carried on business or has ceased to carry on business; and
(ii) resolved that pending the determination (or, should it sooner occur, the cancellation, at its request, of this process) of its application to be struck off, the company will not carry on any business or incur any liabilities;
(c) the company has delivered to the Registrar all annual returns required by section 344 that are outstanding in respect of the company as at the date of the application;
(d) the company has delivered to the Registrar a certificate in the prescribed form signed by each director certifying that as at the date of the application—
(i) the amount of any assets of the company does not exceed €150;
(ii) the amount of any liabilities of the company (including contingent and prospective liabilities) does not exceed €150; and
(iii) the company is not a party to ongoing or pending litigation;
(e) the Registrar has received from the Revenue Commissioners written confirmation dated not more than 30 days before the date on which the Registrar receives the application that the Revenue Commissioners do not object to the company being struck off the register; and
(f) the company has caused an advertisement, in the prescribed form, of its intention to apply to be struck off the register to be published within 30 days before the date of the application in at least 1 daily newspaper circulating in the State.

In relation to an involuntary strike-off being initiated by the Registrar - strike-off may be temporarily deferred by the Registrar, notwithstanding a company’s failure to deliver its outstanding annual returns to CRO.

For instance:

  • Where court proceedings have been initiated by a third party against a company, a temporary block against strike-off at the request of that third party may be allowed by the Registrar on a case-by-case basis, a certified copy of the ongoing court proceedings being furnished by the requester to CRO for verification purposes. 
  • Where a company is involved in litigation and the issues that are being litigated are preventing it from filing its annual returns, a temporary block against strike-off may be allowed by the Registrar, strictly subject to up-to-date certified copy court papers in the relevant litigation being furnished to CRO for verification purposes.

Please note that in instances where strike-off action has been temporarily blocked by CRO, a company’s obligation to file annual returns continues and late-filing penalties will continue to accrue where a filing deadline has been missed, notwithstanding that the company has been temporarily blocked against strike off. In addition, the CRO is not precluded by the temporary strike-off block from initiating other Enforcement action(s) against the company and/or its Directors as long as its annual returns remain outstanding, in breach of section 343 Companies Act 2014.