2016 Ezine Newsletter

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Issue 153 7th March 2016

DIGITALLY CERTIFIED DOCUMENTS FOR MORTGAGES/CHARGES

CRO will commence issuing all Mortgage Certificates  as “digitally certified” documents early in Quarter 2.  These will replace the paper Mortgage Certificates currently in use which are posted out to presenters.  These will facilitate immediate receipt of certification by the presenter as soon as the charge has been registered. They will be emailed to customers as a pdf document to the email address entered in the “Presenter Details” section of the eform submitted to register the charge.  The pdf document will contain  a coloured banner at the top of the screen to confirm  that it has been digitally signed as certified by the CRO. This provides an assurance to the recipient that the document is authentic, has not been tampered with and  has been independently verified as sourced in CRO. Presenters can provide these digital certificates directly  to third parties by email.

DEADLINES FOR COMPANIES WISHING TO BE CONVERTED TO A DAC OR AN LTD

Under the 2014 Companies Act, all existing private companies limited by shares have the option of converting to one of the new company types (LTD or DAC) during a transition period which ends on 30 NOVEMBER 2016.

Companies that have not applied to the CRO to be converted to either a DAC or an LTD during the transition period will be automatically converted to an LTD by the CRO after 1 December 2016.

Companies wishing to be converted to a DAC must, under the Act, pass an ordinary resolution to convert by 31 AUGUST 2016 and should follow up by filing a Form N2 and amended Constitution with the CRO as soon as possible thereafter.

Companies wishing to convert to an LTD and adopt a new Constitution should do so as soon as possible as the CRO cannot guarantee that applications received at the very end of the transition period will be processed before 30 November.

Directors of companies wishing to be converted to a new company type are therefore requested to consider this matter at the earliest opportunity and to file your conversion applications with the CRO in good time.

COMPANY CANNOT FILE TWO ANNUAL RETURNS WITH THE SAME SET OF FINANCIAL STATEMENTS

Section 347(4), Companies Act 2014, states that every document annexed to an annual return shall cover the period since the end of the period covered by the financial statements annexed to the preceding annual return and shall be made up to a date falling not more than 9 months before the date to which the return is made up.

This means that each set of financial statements must start on the first day after the period covered by the last set of financial statements filed withthe CRO.

From 31 March 2016, CRO will require companies to file a separate set of financial statements with each annual return.

Companies are reminded that the 2014 Companies Act provides a number of methods for moving an ARD date and for aligning ARDs and financial year ends. These include the following:

- under section 346(1), a company may file its annual return early and tick a box on the Form B1 to change its ARD to the date that the B1 is made up to,

- under section 346(2), a company may (once in every 5 years) move its ARD date forward by up to 6 months by filing a Form B73 with an on-time Form B1,

- under section 356(5), a company that is a member of a group may align its ARD with its holding company or other subsidiaries by filing a Form B78A with the CRO,with no 5 year restriction,

- under section 288(4), a company may, once in every 5 years, alter its financial year end by filing a Form B83 with the CRO, subject to the new financial year not exceeding 18 months. The 5 year rule does not apply where the company is a subsidiary or holding undertaking of another EEA undertaking.

Please note that section 288 (1), CA 2014, specifies that a company's first financial year begins upon incorporation and ends on a date no more than 18 months after that date. This gives a company the flexibility to use their first full annual return (required to be filed no later than 18 months after incorporation) to file financial statements for a period shorter than 18 months in order to achieve the desired ARD / FYE combination, bearing in mind that the ARD cannot be more than 9 months after the financial year end.

 FIXING OF LENGTH OF FINANCIAL PERIODS

Under Section 288, Companies Act 2014, the Financial Statements attached to a company’s first full annual return (ie with Financial Statements) must cover the period from incorporation and must not be for a period longer than 18 months. Each subsequent financial year begins on the date immediately after the last financial year end date and must be for a period of no more than 7 days shorter or longer than 12 months.

A company may, by filing a Form B83 with the Registrar (filing fee: €15), apply to alter (ie shorten or lengthen) its current or its previous financial year end date 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 Form B83 is to be used to alter an existing financial year end and is generally not required prior to filing the first set of
Financial Statements (which can be for a financial year of up to 18 months).

From 31 March, CRO will require companies to strictly adhere to the requirements of the Act that financial years must not exceed 18 months for the first financial year and 12 months (give or take 7 days) for subsequent financial years (unless the company files a Form B83 to alter its financial year end).

For further information see Section 3 of CRO Information leaflet No.23 or CRO website:

https://www.cro.ie/Publications/Publications/Information-Leaflets
https://www.cro.ie/New-Act-2014/Companies-Act-2014/Annual-Returns/Financial-Statements-after-1-June

REGISTERED POST DOES NOT GUARANTEE NEXT DAY DELIVERY

Please note that An Post has advised the CRO that REGISTERED POST DOES NOT GUARANTEE NEXT DAY DELIVERY. Therefore, if a document is sent to the CRO by Registered Post and is delivered after the filing deadline, the law leaves the CRO with no option but to treat it as being late.

If a company is sending an Annual Return to the CRO a short time before its filing deadline, CRO recommends that you use a time guaranteed service which provides proof of delivery. This shouldremove the risk of the document being delivered late and may save the company from incurring late filing penalties and the cost of two audits.

There are a number of providers offering this type service such as EXPRESS POST, which guarantees next day delivery with tracking within the State.

For further information see:

https://www.cro.ie/Annual-Return/Missed-Deadlines

CERTIFICATION OF FINANCIAL STATEMENTS ON B1 FORM

When certifying the Financial Statements on the B1 form, the Act(s) quoted in the Certification that you tick, must match the Act(s) that the Financial Statements attached to the B1 form were preparedunder.

All Financial Statements signed after 1 June 2015 must be prepared in accordance with the Companies Act 2014. 

MORTGAGES AND REGISTERING FOR ROS

Forms C1, C1A and C1B and F8, F8A and F8B must now be filed electronically using a ROS signature. There is no facility to file these forms manually.  

The form is not filed until the last ROS signature is applied using a ROS cert. Please be aware of the statutory timelines in this regard. The content of these forms should be checked thoroughly as if they are incomplete or incorrect they will be rejected.

The ROS cert or sub-cert must be in the name of the individual signing the form.

Two separate individuals are required to sign, one on behalf of the company, and another on behalf of the charge holder. In this regard, please ensure that they are both carefully entered in the Form/s as signatories. Please note that the full name must be stated and not
a shortened version (e.g. first name, initial or surname). 

To file charges under the Companies Act 2014:-

• Log on and register at www.core.ie

• Obtain a ROS certificate or sub certificate from Revenue
   https://www.cro.ie/Services/Registering-for-ROS
   see www.ros.ie

Also see CRO website at https://www.cro.ie/Services/Registering-for-ROS

• Familiarize yourself with the CRO website, new forms and Information leaflet no. 27.

For further details please See Mortgages page.

https://www.cro.ie/Post-Registration/Company/Mortgages-and-Charges

CONVERSION TO NEW COMPANY TYPE - CERTIFICATION OF RESOLUTIONS

Under the 2014 Companies Act, a company may convert to an LTD by submitting Form N1 (free) together with a special resolution and a copy of their new constitution to the CRO, or, if converting under Section 60 of the Act, only an N1 & new constitution is required.

Where a special resolution contains a number of decisions, CRO requires the resolution confirming the shareholders’ consent to the conversion to LTD to be extracted and filed with the N1 form, and that extract must be certified by a director or secretary as a true copy of the original.

When converting to one of the new company types, a list of subscribers must be attached to the new Constitution. This list must be the ORIGINAL SUBSCRIBERS LIST as submitted to the CRO on incorporation, not the current list of subscribers/shareholders.

In addition, it is the latest Authorised Share Capital and Share Value, as submitted to the CRO which must be stated on the new Constitution.

Companies converting to the new LTD type do not need to state the Authorised Share Capital, but the current Share Value must be the most up to date value, as filed with the CRO

See sections 191-198, Companies Act 2014 and SI No 39/2002 – section23(1), Companies Act 1990 (Form and Content of Documents Delivered to the Registrar) Regulations 2002.

CRO IS PHASING OUT CHEQUES 

In accordance with Government policy, the CRO is planning to phase out accepting cheques and other paper forms of payment as soon as possible and has provided the following electronic payment options to customers:
 
· if filing documents on-line or at the Public Counter in Parnell House you can pay the fees by credit/debit card or
 by Customer Account,
· if filing paper documents you can pay the filing fees by using a Customer Account which can be topped up on-line
 through www.core.ie by credit/debit card.

CRO requests all customers who currently make payments to the CRO by cheque to begin the process of moving away from cheques and other paper forms of payment by:

· familiarising yourselves with CRO’s electronic methods of payment set out on the CRO website at
 https://www.cro.ie/Publications/Fees/Payment-Methods
· making whatever changes in procedures are necessary within  your firm/company to allow you to discontinue using cheques and other paper forms of payment as soon as possible.

Please note that if you are paying CRO fees by cheque, please make sure that any changes made to the cheque(s) are initialled and dated as otherwise the CRO will be unable to accept these cheques. Cheques must be drawn on a bank in the Republic of Ireland clearing system.

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