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The Companies Act 2014 states that the duties of a Company Secretary are delegated to the position by the Directors.
Basically, this means that the Directors must ensure the Company Secretary is capable of doing the job. A standard test would be to consider:
has the individual acted for three of last five years as Company Secretary;
is the individual a member of a recognised body; or
appears capable of discharging the duties.
Directors must also ensure that the Company Secretary has the skills but, also resources necessary to discharge his/her duties as Company Secretary.
The duties of a Company Secretary can be fairly standard regardless of the size of the Company such as outlined below.
Prepare, issue and file statutory forms in the Companies Registration Office.
File changes on beneficial ownership with the Central Register of Beneficial Ownership.
Maintain Statutory Registers – includes Registers of Directors, Allotments, Transfers, Members, Charges, etc.
Attend and minute Meetings, and maintain Minute Books.
Assist Directors to comply with their duties.
Acting as named Company Secretary.
Just remember if the company only has one Director that sole Director may not also act as named Company Secretary.
The phrase “Fiduciary Duties of a Director” is used so often but I still meet some Directors who feel inhibited to ask just what does the phrase mean.
Fiduciary Duties are set out in the Companies Act 2014 and are intended to help a Director comply with his/her duties as a Director.
Duty to disclose any interest Director may have in contracts made by the company.
Act in good faith in interests of the company.
Act in accordance with the Company’s Constitution. Although not stated in the Companies Act 2014 a Director would also have to act in accordance with Shareholder’s Agreement if applicable.
Only act in accordance with the law.
Do not use the company’s property, information or opportunities for his/her own benefit or that of anyone else without specific approval as set out in the Act.
Cannot restrict a Director’s power to exercise his/her independent judgement without specific approval or permission as set out in the Act.
Avoid conflict between the Director’s duties to the company and his/her own personal interests.
Exercise care, skill and diligence.
Have regard for the interests of its employees in general and the interests of the members.
Fiduciary Duties may sound onerous but, they are a key resource in helping us as Directors to focus on our duties and responsibilities to act in the best interests of the company, its members and employees. For me, Fiduciary Duties are just common sense and should help all Directors to manage an effective and progressive company.
Being asked to be a Director of a company can, at first glance, appear an honour. How good for our egos that someone sought us out personally to ask US to be a Director of a company but, there is always a but!
A Director is required to act in the best interests of the Company, its Members and Employees. The challenge for any Director is proving that he/she has done so. Turning up for a Board Meeting with an eye on the clock in anticipation of the Director’s lunch should be a thing of the past.
Yes, it can be an honour to be asked to be a Director but, if we get it wrong then we potentially face consequences that will impact on our professional and personal life. So, if you are asked to be a Director ensure you interview the Company just as much as it should be interviewing you.
The first question is to find out if there is an Induction Pack for incoming Directors as it should help to provide answers on basic queries to be considered before becoming a Director.
Experience and make-up of existing Board and is there a Chairperson.
How frequently are Board Meeting held and what type of Board Pack is sent out in advance of same.
Are or should there be Committees in place, e.g. Audit, Risk, etc, and if so how are findings outlined and acted upon by the Board.
What Policies are in place, e.g. Ethics & Compliance, Health & Safety, etc.
The second question is to ensure the Company operates with good governance which is actively reviewed.
Ensure all filings in the Companies Registration Office and Central Register of Beneficial Ownership and Revenue Commissioners are made in a timely and current manner.
Maintain proper books and records which include Statutory Registers and Financial records.
Ensure compatibility across all documents governing the company, e.g. if there is a Shareholders Agreement or Funding Agreement with a State Body or Bank ensure there is no contradiction between the Agreement(s) and the Company’s Constitution.
Bank mandates should be current.
Have appropriate contracts in place, e.g. it is a statutory requirement that all employees have a contract of employment.
What procedures are in place to ensure registration and/or renewal of IP and Licences.
Only when we understand the Company and how it operates can we then make an informed decision on an invitation to join a Board. It can take new Directors up to a year to feel he/she is part of the Board but, the duty of a Director starts from the moment he/she is appointed.
Honour or risk – you decide. Good luck!
The CRO Enforcement Section mean business as they are now actively pursuing companies for outstanding Annual Return filings at the rate of 1,000 per week.
Yes, that is right 1,000 per week!
It is expected that companies with the greatest number of outstanding Annual Returns will be targeted first. One of the penalties for filing late is the loss of audit exemption. Trying to get a Statutory Auditor at short notice to prepare appropriate Financial Statements is likely to prove both challenging and costly. Combine that with penalty filing fees and affected companies will be experiencing a severe financial pinch to end Q4 2023.
Do not wait for the CRO to catch up with you, act now.
Bring all outstanding Annual Return filings up to date. Engage with your Accountants/Auditors for support on preparing relevant Financial Statements for filing with the outstanding Annual Returns.
- Check status of your company’s filing in the Companies Registration Office is correct
- Check if any of the directors have changed their personal details. The two most common changes are where directors have changed home address or their list of directorships are not current.
- When a director moves home address a statutory form must be filed noting the new address and effective date of change.
- The list of directorships should include all directorships held worldwide, past and present, within past 5 years.
- Have the Financial Statements ready for filing.
- Confirm the designated signatories for the Annual Return will be available to sign when required, i.e. a specific named Director and the Company Secretary.
- The Annual Return should include the PPSN of each Director.
- Where a Director does not have a PPSN, they must instead provide a VIN (Verified Identity Number).
- A VIN can be applied by submitting a notorised VIF Form in advance with the Companies Registration Office. The turnaround for registering notorised VIF Forms is approximately one week.
- Annual Returns without either a PPSN or VIN number will be rejected.
As a CLRG Member (nominated by the Small Firms Association) you will not be surprised that I think the CLRG is extremely relevant. My fellow Members consist of representatives across a wide range of business interests such as legal, accountancy, business representative groups and trade unions.
In the past couple of years the CLRG was directly involved in the following Acts which have already entered the business lexicon and are examples of how business needs were heard by the Minister, reviewed by the CLRG and enacted by the legislature.
The Companies (Miscellaneous Provisions) (Covid 19) Act 2020 – a very timely and uniformly welcome piece of legislation that came into being in an unusually short timeframe. The Act enabled companies to have shareholders attend Annual General Meetings electronically. Electronic participation at meetings has rapidly become the norm in so many areas in a manner that would have been thought impossible four years ago.
The Companies (Rescue Process for Small and Micro Companies) Act 2021 – commonly known as SCARP the Act is intended to help viable insolvent companies to restructure debts and avoid liquidation.
The Companies (Corporate Enforcement Authority) Act 2021 – seen as a fresh start for what used to be the Office of Corporate Enforcement. Do not let the title of the Corporate Enforcement Authority put you off exploring its website where there are actually a surprising number of information guides to help companies, directors and members understand their roles and rights.
The CRO are set to re-launch its requirements for PPS / VIF numbers to be included when filing various statutory forms such as changes to Director details, Annual Returns, etc on Sunday 11th June 2023 (the original April launch date was postponed).
Take into account that if you file one of the statutory forms impacted by the issue such as an Annual Return without the PPS / VIF numbers now and then submit the signature page after 11.06.2023 the Annual Return will be rejected.
How to obtain PPS / VIF numbers
Following on from my previous blog all Directors of any company incorporated in the South of Ireland must provide his or her PPS / VIF number in order to file any of the following statutory forms in the Companies Registration Office (CRO).
Form A1 – company incorporation
Form B1 – annual return
Form B10 – change of Director and/or Company Secretary details
Form B69 – filed by a Director and/or Company Secretary noting resignation where company has failed to do so.
A PPS number is provided to any individual tax resident in Ireland and can be found in a variety of places such as an individual’s:
European Health Insurance Card
PAYE Notice of Tax Credits
The name attached to the PPS number and filed in the CRO must match exactly.
A VIF number has to be requested by any individual that does not have a PPS number.
A VIF Form will have to be completed by the individual before a Notary Public when sworn outside of the South of Ireland. The correctly completed VIF Form is then filed with the CRO. Once filed the CRO will then issue the VIF number.
So far three potential roadblocks have been identified by clients.
Disparity between PPS name and name filed in the CRO. KomSec is currently engaging with its clients to identify and remedy this roadblock.
Time involved in completing process to obtain VIF number involves a number of different elements but, at least the VIF Form can be sent to KomSec electronically as the original signed Form is not required.
Concerns on how long it may take Department of Social Protection to confirm details to the CRO. Only time will tell how this may impact on filing deadlines forAnnual Returns and if a delay could result in a company losing audit exemption.
Do not worry KomSec is here to help as we continue to:
contact our clients to help them prepare and comply with this new provision;
prepare and file statutory forms required to resolve any disparities that exist between PPS name and name filed in the CRO; and
help clients to apply and obtain individual VIF number.
KNOW YOUR NUMBERS - PPS / VIF number – New filing requirements imminent…..
Reality – imminently (due to commence on the 23rd of April but a temporary postponement was put in place by the CRO) … all directors of any company incorporated in Ireland must provide his or her Personal Public Service (PPS) number or Verification of Identity (VIF) number when filing certain documents in the Companies Registration Office.
What is difference between PPS and VIF number – PPS number is available to any individual tax resident in Ireland. VIF number is established where an individual is not tax resident in Ireland.
Scam Awareness – this is new filing requirement has already generated publicity and offers a unique opportunity to scammers. Be very careful how you engage with anyone asking for your PPS number.
Why now - the requirement to provide a PPS number is contained in the Companies (Corporate Enforcement Authority) Act 2021 but, it has taken time for the technology and verification processes to be designed and tested.
Why is it required – the purpose is to add an additional layer to verify the identity of a director when filing documentation in the Companies Registration Office.
Is compliance really necessary – providing the PPS number is a mandatory requirement which means failure to comply is a Category Offence. It also means any statutory filings will be rejected which would have knock-on effects in terms of dealing with banks, losing audit exemption, etc.
Who sees PPS/VIF number – the person preparing the statutory form for filing will enter the PPS/VIF number. When filed electronically the PPS/VIF number will never be visible to any staff in the Companies Registration Office or members of the public.
What now – where the PPS or VIF number is not already on record KomSec will contact its clients directly. Additional blogs will be issued as the process gets up and running.
In November 2022 the Court of Justice of the European Union (CJEU) ruled that the rights of the public to access information on the beneficial ownership of companies was “a serious interference with the fundamental rights to respect private life, and to the protection of personal data”.
Whilst the provision of beneficial ownership originated from an EU Directive on Anti-Money Laundering the right of public access to that information impacts in so many different areas.
This is an EU wide problem as the bulk of Member States in the EU have established their own Registries of Beneficial Ownership.
Buying, selling, merging companies all include basic searches in the Companies Registration Office and Central Register of Beneficial Ownership. These searches are intended to support the information provided by the buyer, selling, merging entities and give comfort to all involved.
Would you be willing to consider buying or selling or merging with a company when you cannot verify details of beneficial ownership filed in the relevant EU Registry?
Despite immediate and widespread reaction against the ruling the reality means that for many companies throughout Europe their rights to access beneficial ownership details continue to be denied.
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