Failure to File on time: Failure to file an annual return on time can have several consequences including the imposition of the late filing fee, prosecution of the company and/or its directors, the loss of the audit exemption or the possible involuntary strike-off and dissolution of the company. (see below).
Extension of time to file
Under section 343 of the Companies Act 2014, applications for an extension of time to file an annual return may be made to either the High Court or to the District Court. The Court may, if it is satisfied that it would be just to do so, make an Order extending the time in which the annual return of the company, in relation to a particular year, may be delivered to the Registrar of Companies. An application to the Court can only be made in respect of an annual return which has not already been delivered to the CRO. Only one Order may be made in respect of a particular year.
Where the Registrar has commenced proceedings for late or non-filing of annual returns, any subsequent applications by the company concerned under section 343(5) Companies Act 2014, will be objected to by the Registrar on the basis that proceedings have already been commenced against the company for the said late filing of annual returns.
Application to the Court is made on notice to the Registrar by means of an Affidavit. The time period which may be extended by the Court is the current 56 days after the ARD (or effective date of the return) in which the company may file their annual return.
Where the Court makes an Order extending the time to file, the company must deliver the Order to the CRO within the time period specified in the Order, usually within 28 days of the Order being made.
If the company submits all elements of the annual return to the CRO online within the extending time period specified by the Court Order, that annual return will be deemed by the CRO to have been received on time and the consequences of late filing (late filing fees/loss of future audit exemption) will not apply to that annual return.
DISTRICT COURT - APPLICATION FOR ORDER EXTENDING TIME TO FILE ANNUAL RETURN
Procedures to be followed: see also Information leaflet 39.
Please note that a company must have legal representation when making an application to court:
1. An application must first be made to the District Court for the district in which the company's registered office is situated for a court date.
2. A copy of the notice in Form 93B.1 containing the date and time of the court hearing must be served on the Registrar along with a copy of the company's Affidavit (Form 93B.2), thereby putting the Registrar on Notice in accordance with section 343(5), CA 2014. The Form 93B.1 must be signed by the Applicant or by the Solicitor for the Applicant.
3. The Notice to the Registrar must be delivered to the CRO not later than 21 days before the Court date. Otherwise it cannot be accepted.
4. The Form 93B.1 must state the annual return year in question, the company's current ARD, and the date to which the extension is sought. The time period which may be extended by the Court is the current 56 days after the ARD i.e. the time period within which the company has to file their return.
5. The CRO will issue a letter acknowledging that the Registrar has been put on Notice to the Applicant or its Solicitor which the company must provide to the Court, along with the Form 93B.1 and Affidavit not later than 4 days before the Court date.
6. If the Judge grants a Court Order extending the time to file, the Order will show (i) the date to which the extension is granted and (ii) the date by which the Order must be delivered to the Registrar (will normally be 28 days).
7. If the Court Order is not delivered to the Registrar by the date specified at 6(ii), it cannot be accepted by the CRO as the company will be in breach of the terms of the Order.
8. If granted an extension of time to file, the company must submit all elements of the B1 by the extended date granted by the Court in its Order.
9. If the company delivers or submits its annual return after the date to which the extension has been granted, it will be deemed to be late and will be subject to late filing penalties and loss of audit exemption for two years in the normal way.
10. If the original court date is changed or the case is adjourned, the company must immediately inform the Registrar of the new court date.
Please note that a company must have legal representation when making an application to court. The application is by means of an affidavit on notice to the Registrar.
(1) Under Section 343(7), Companies Act 2014, a company whose annual return should have been delivered before 1 June 2015 CANNOT apply to the District Court for an extension of time to file that annual return.
The Registrar WILL OBJECT to any application where the annual return should have been delivered prior to 1 June 2015.
(2) Under District Court Rules - Para(4), SI No 256 of District Court (CA2014) Rules 2015, the Affidavit to the District Court must explain why it was not 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 on time.
The Registrar reserves the right to object to any application where 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 on time.
(3) A dissolved company does not have a legal existence until such time that it is restored to the Register.
The Registrar WILL OBJECT to any application made by a dissolved company for an extension of time.
Late Filing Fee
A late filing fee of €100 becomes due in respect of an annual return on the day after the expiry of the filing deadline, which deadline is 56 days after the effective date of the return, with a daily late fee amount of €3 accruing thereafter, up to a maximum late fee of €1,200 per return. This fee is in addition to the standard filing fee of €20 per return. Revenue have confirmed that late filing fees are not tax deductible.
In addition, an on-the-spot fine may be imposed by the CRO where the company has a record of persistent late filing and/or summary prosecution of the company and/or any officer in default. Fines of up to €5,000 can be imposed on a conviction for breach of the annual return filing requirements - Category 3 offence.
In addition, 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 Public Expenditure, 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 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. Link to Involuntary Strike-Off.
If a company’s annual return for the previous year was not filed on time, the company cannot avail of the audit exemption. Failure to file on time in the current year will result in the company losing audit exemption for the next two years. Please see Audit Exemption page.