The timing may be tough but failing to file beneficial ownership details will be much tougher!

Just to add to the joy of working from home and all its attendant pleasures companies are now starting to receive notices of non-compliance for failing to file beneficial ownership details with the Central Register of Beneficial Ownership!

The timing may be tough but failing to file beneficial ownership details will be much tougher.

All companies incorporated in Ireland must file beneficial ownership details with the Central Registry. Failure to comply is an offence leaving both the company and its directors liable to:

(a)       on summary conviction                       Class A fine (up to €5,000); or

(b)       on conviction on indictment                 Fine not exceeding €500,000.

If you do nothing else this week at least check if your company has filed, and if not, get the ball rolling asap.

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Annual Return – Filing deadlines extended

During current Phase 5 restrictions the Companies Registration Office (CRO) have extended filing deadlines for all companies with an Annual Return Date (ARD) from 30^th September 2020.

This means that any company with an ARD which falls on or after 30^th September 2020 does not have to file the original signature page in the CRO until 26^th February 2021.

Do not get carried away though until you have had a chance to consider the following points.

• Annual Return must be filed electronically.
• Financial Statements must be filed electronically.
• Filing fee must be made when submitting the original signature page of the Annual Return.
• The signatures of both the Director and the Company Secretary must be made on the same page.
• CRO are currently only accepting postal submissions so relying on being able to make a courier delivery in February is risky.

Companies with an ARD up to 29^th September 2020 had to have filed everything (i.e. Annual Return, Financial Statements, filing fee and original signed page) by 31.10.2020. Any company that has missed this deadline for whatever reason now faces, at a minimum, loss of its audit exemption and automatic imposition of penalty filing fees by the CRO.

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CRO extends Deadline for Annual Returns to 31.10.2020

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CRO extends Deadline for Annual Returns to 31.10.2020

Annual Returns filed between 18^th March 2020 and 31^st October if all elements of the Annual Return (original signed signature page and Financial Statements) have been filed by 31^st October 2020.

The original extension (announced in March) was until 30^th June.

They are however encouraging companies who can to file as normal during this period.

If you have any queries please get in touch with us.

Keep safe.

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Engaging with Companies Registration Office

Engaging with the Companies Registration Office

The Companies Registration Office (CRO) will recommence accepting posted submissions in both their Dublin and Carlow Offices from today Monday 6th April.

Practicalities of filing submissions with the CRO are summarised briefly as follows:

• Post will be date stamped on receipt and stored for processing when they re-open, which will impact on processing times and access to information filed from 12.03.2020 until they re-open.
• Documents delivered by hand or courier will not be accepted.
• CRO offices in Dublin and Carolow remain closed to the public.
• Limited services are available for Company Incorporations and Charges.
• Filings can still be made online.
• ROS signatures (if you have one) can be used instead of a signature page.
• Company searches can still be made online but, may not refledt call submissions filed to date.

It is worth highlighting that one can no longer rely on standard searches. In the past, searches were esssential for checking status of a company (e.g. normal, strike-off, examinership etc.). The two main reasons for searching were (a) as a means of reviewing a potential new client, and (b) to support information provided to banks when opening accounts or taking out loans.

The CRO public office has been closed since 12.03.2020 which means submissions filed from 12.03.2020 until the CRO reopens will not be reflected when searching a company. Even when the CRO reopens there will be a backlog of submissions to get through. 

Remember though as with everything in our lives at the moment things change, so please check with us before filing or if you have any queries on the above. 

Keep safe and well.

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COVID-19 - OPTIONS FOR YOUR IRISH CHARITY'S AGM

Coronavirus has no race - Photo by visuals on Unsplash

COVID-19 - OPTIONS FOR YOUR IRISH CHARITY'S AGM

The Covid-19 pandemic is having a huge impact on charities in Ireland most of whom will have to reconsider their AGM arrangements this year. All companies in Ireland must hold an AGM every calendar year. The following are suggestions to take into account for planning the AGM this year:

DELAY

Consider delaying the AGM, taking the following into account:

 ·       The length of time between one AGM and the next can be no more than 15 months.

·        No more than 9 months between the year end and the AGM date.

The good news is that the Companies Registration Office announced this week that Annual Returns due between now and the 30^th June will deemed to have been filed on time if all elements of the return are completed and filed by that date.  They are reviewing the situation and this date may be extended again. 

 The Charity Regulatory Authority do not currently propose to formally extend filing deadlines. This may be reviewed.

WRITTEN RESOLUTION

Check your constitution to see if holding an AGM via Written Resolution is an option. The Written Resolution would need to be signed by all of the Members entitled to attend and vote at the AGM.  This is may not be practical for charities with a large membership. In that instance, consider attendance by proxy.  

USE OF PROXIES

Arrange the AGM attendance by use of proxies, subject to the constitution. Ensure the proxy form offers alternate proxy holders and permits appointing a substitute, doing so will avoid the risk of a of an absent proxy holder and the member’s voting preferences not being counted.

VIRTUAL MEETINGS

Irish Company Law does not allow virtual meetings. However, subject to the constitution, a hybrid general meeting may be possible. This is where a physical meeting is held and facilitates electronic participation.

•        The Chair must be able to identify Members present which could tricky in a virtual AGM if the member is not visible.
•        Attendees must be able to both speak and vote at the meeting.

The use of any proposed technology needs to be tested in advance to include the above requirements and also ensure electronic votes can be counted. The AGM notice should also include a helpline number for any member having difficulty joining the meeting.

Consider the possibility that the technology may not work due to Covid-19 and certainly should not be trusted for a quorum.

You could arrange the AGM by proxy and still hold a virtual meeting to facilitate participation.

WHAT IF FINANCIAL STATEMENTS ARE NOT READY?

If the Financial Statements are not ready, the charity can hold the AGM and then immediately adjourn it.

Alternatively, hold the AGM, deal with all items that should be dealt with i.e. reappoint the Statutory Auditors, change of Drectors, Special Resolutions (if any).  Adjourn the meeting when the Financial Statements are to be dealt with. The meeting is then reconvened at a time and place determined by the Directors when the Financial Statements are ready.  The reconvened AGM only deals with unfinished business from the adjourned AGM i.e. present the Financial Statements to the members.  

Canvassing members on this option is recommended best practice.

COMMUNICATION

Finally, communicate clearly with your members and stakeholders. Explain that in light of the current global health emergency, the charity must comply with legal restrictions imposed by the Government and the HSE. Being open and transparent with your members should migate any risk of the charity being accused of unreasonable behaviour.

As always if you have any questions on this article or are struggling with any governance issue for your charity, please do not hesitate to contact me or one of my colleauges in KomSec. 

Keep well and safe.

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Business as Usual (almost) – Covid-19 (Coronavirus)

Like everyone KomSec Limited is working around the impact of Covid-19 on business life. 

Standard company secretary work, e.g. managing Company Registers, and filing statutory forms continues as usual.  However, we are noticing clients becoming more cautious about formal gatherings be they seminars, workshops or board meetings.

To help manage these concerns KomSec Limited are facilitating clients by:

o   increasing conference calls instead of client visits;

o   virtual attendance at Board Meetings (mainly via Skype and Teams); and

o   have set up systems so that our staff can work from home if required.

Safeguarding the health of our staff and clients is naturally paramount but, if there is anything we can do to help support your Company please let us know.

Stay well and good luck as we all continue to adapt to this evolving situation. 

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Charities - you just can't win

We have become so used to hearing about Charity Trustees who have gone bad and lost the run of themselves but, in this case, depending on one’s viewpoint the only ones losing the run of themselves is either the Charities Regulator or the Revenue Commissioners or both.

Paul Murphy of RTÉ Investigates issued a fascinating update on 21.02.2020 entitled “Charities Regulator excoriated after its Trustee Nominees sued by Revenue”.  When reading this article you must suspend any thoughts about “sense” “logic” “appreciation” with “weird” “illogical” and “what on earth”.

In brief, the Kerry based Animal Heaven Animal Rescue (AHAR) incurred substantial tax liabilities which ultimately led to the closure of the Charity.  

o   January 2017 – RTÉ Investigates exposed misleading fundraising practices, unreceipted cash expenditure and a lack of financial controls.

o   March 2019 – the Charity was wound up following an audit which had commenced over 18 months before the Charities Regulator nominated four Trustees.

o   April 2019 – the Revenue initiated High Court proceedings against the Trustees nominated by the Charities Regulator. 

AHAR is now wound up but, had tax liabilities of €203,000 of which €140,000 has been paid with a commitment to repay the balance of €60,000 in October 2020.  Given the tax liabilities are being repaid, and (based on RTÉ Investigates reports) the Revenue have stated its intention to drop these proceedings if the outstanding tax liability is discharged in full why is the Revenue taking proceedings against the current Trustees?

Concerns over the level of “poor governance” at the Charity prompted the Charities Regulator to start nominating Trustees in order to “Implement proper governance and controls of the charity”

The Trustees (nominated by the Charities Regulator) did not receive any remuneration or expenses for their work.  They are however receiving legal bills as they have to defend themselves against prosecution by the Revenue which must be costing each of them somewhere between €12k to €15k each.

The Charities Regulator expressed “sympathy” for the Trustees nominated by his office to help sort out CRA issues with the Charity. 

One thing for sure the very people who were put in to help rescue the situation were the ones who are being been hammered.  Why would anyone want to be involved with a Charity at any level based on this type of scenario where people were doing the right thing for the right reasons and still lose!

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Books of Account - what do I need to keep?

All companies are required to keep adequate accounting records but, what precisely does “adequate accounting records” mean?

Adequate accounting records are records which:

• correctly record and explain transactions of a company;
• detail assets, liabilities, financial position, profit or loss of a company; and
• enable directors to prepare annual financial statements.

The type of information which must be contained within the accounting records should cover information such as outlined below.

• All monies received and spent
• All assets and debts
• All purchases and sales
• Records of stock held
• Records of services purchased or provided
• Record of all goods bought and sold, including a record of itemised invoices

Time is money so, handling all of the above personally may not be the most cost effective option for a company. 

Consider:

-          having a qualified book-keeper (part-time or full-time)

-          retaining information in a simple format - does not have to be a costly bespoke piece of software.

As always, if you have any questions on this blog please contract myself or one of my colleagues.

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Who is a 'Beneficial Owner' of a Charity & must register on the Register of Beneficial Ownership?

If you cast your mind back to before we all dug into Mince Pies and Christmas pudding, you might recall the hullabaloo  concerning registering beneficial owner details of practically every company  in Ireland on the Register of Beneficial Ownership before an end of November deadline.

While companies were by and large aware of their obligations it has been my experience that Charities are not as aware that they too must Register and even if they are aware the first question I hear is …. “but who are the ‘Beneficial Owners’ of our Charity?”.  This blog will try and answer that question……….

‘Control’ is the key as under Beneficial Ownership rules this determines who must register. In your standard limited liability company, it is generally the case that whoever holds over 25% of the shares in the company is considered to ‘control’ it and must register their details. Most charities however are companies limited by guarantees (CLG’s) and don’t have shares. As such you have to look at its members as in general they are entitled to exercise, through their right to vote at general meetings, some ‘control’ over the company. Then it is simply a question of numbers!

• ≤ 3 members

If there are 3 or fewer members in a Charity CLG, those members are likely to meet the definition of “control” (because each member has greater than 25% of the voting rights) and their details must be placed on the Register of Beneficial Ownership.

• ≥ 4 members

If there are 4 or more members in a Charity CLG (which is typically the case in most charities), no one member has over 25% of the voting rights and so they do not qualify as a beneficial owner. In this case, the details of the “senior managing officials” (i.e. its Directors and any Chief Executive Officer) must be placed on the Register of Beneficial Ownership.

• Exceptions

As you would expect, my easy numbers rule is not the case for every single charity and there can be exceptions (e.g. the constitution of the Charity prescribes ‘control’ in a particular way) but by and an large the members ‘rule’ applies to the vast majority of charities and is an easy way of identifying who must register.

As always, if you have any questions on this blog please contact myself or one of my colleagues.

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Deadline for Beneficial Ownership Filings

The deadline for filing Benficial Ownership details in the Central Beneficial Ownership Register is the 22nd of November, 2019. KomSec would advise clients not to leave registration until the last minute as a rush of registrations could cause a system overload in the Companies Registration Office (which is handling filings on behalf of the Registrar of Beneficial Owernship). It should also be remembered that the 2019 legislation increased the sanctions substantially from those provided for in the 2016 legislation. A company who breaches the Regulations may now be liable to a class A fine (currently up to €5,000) or, on indictment, a fine not exceeding €500,000. In addition to these fines, custodial sentences of up to 12 months can be imposed. You have been warned!

Further details can be obtained by contacting KomSec or accessing the Central Register website at https://rbo.gov.ie/

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