There is a slight irony in the publication of the Companies (Statutory Audits) Bill 2017 in the same week that the government announces plans to get tough on White Collar Crime. The new provisions are not as severe as what was originally proposed in the draft Scheme of the Bill.
Before we detail the proposed provisions, it is very important to note that these amendments are merely proposals at present and are subject to change at any time before the Bill is enacted.
If a company has missed its filing deadline to file an annual return or the financial statements, the company has one of the following options:-
- To retain both the audit exemption and have the late filing fees waived companies must now apply to the High Court
- To apply to only have the late filing fees waived companies can apply to the local District Court
- Audit the late financial statements and have the next financial statements audited also
The Bill proposes that the District Court can only be used for applications to waive the late filing penalties imposed on a late annual return. Companies that wish to apply to retain both the audit exemption and the late filing penalties must apply to the High Court for such an order.
This will see SME’s incur higher costs to make the application in the High Court to try and retain the audit exemption. SME’s may not have the resources to apply to the High Court for such an order and the costs would exceed the late filing fees and the audit in many cases.
Most of the applications that are currently made to the District Court are made with the view to try and retain the audit exemption and we see this process will be redundant as companies will not apply to the District Court to just have the late filing fees waived. The cost of making such an application will be similar to the late fees that the company is seeking to have waived. CRO have stated they are reducing the length of time a company is late filing its annual return to 240 days before the company is placed on the strike off list which means the late fees would be €720 plus the €100 filing penalty. The company would incur another €168 in late fees by the time it is struck off.
The Bill is due to be passed in Q2 2018 so all professional advisors who deal with SME companies should consider the new proposals. It is unlikely that the proposals will be changed however representations and discussions should be had on the impact of these new proposals on SME’s that are trying to be proactive in bringing the filing of the company up to date.
These companies could instead walk away and let the company be involuntarily struck off which appears to go relatively unpunished. Maybe these companies should be the focus of the government, CRO and the ODCE first rather than companies that are trying to comply.
While this is not an ideal solution it is a better outcome than the automatic loss of audit exemption for late companies that was originally proposed.
CLS will be able to assist companies in making applications to both the District Court and the High Court and if you have any queries, please feel free to contact Conor or Amy.
Read the draft Companies (Statutory Audits) Bill 2017