S. 343 District Court Applications
S. 343 Protecting Your ARD
The District Court Application Process to Extend Your ARD and Save the Audit Exemption
Companies Act 2014 maintains the same filing requirements as the old regime, namely a company’s ARD could be a maximum of 9 months after its year end and it then had 28 days to file its annual return. If the company electronically files its annual return then it had a further 28 days to file.
What has changed is the CRO’s ability accept late returns under the waiver scheme. The waiver scheme allowed the CRO a level of discretion for companies that had missed their ARD. If the reason presented was sufficiently serious CRO would allow the return to be deemed to be returned in time.
The new Act has removed any facility for the CRO to invoke the waiver scheme. Anyone that now files late is either deemed to be late and must pay the late filing penalties and have their financial statements audited for 2 years or they must apply to the District Court to extend their annual return date.
When a company opts to avail of the District Court option, a Notice of Application and Affidavit must be drafted. See Appendices A and B.
The application to extend the Annual Return Date can be a straight forward process provided all of the relevant steps are followed and the appropriate professionals are engaged. In a normal ‘S 343 appeal’ the process is as follows:
- The company has missed its annual return date.
- The directors engage a service provider to prepare the Notice of Application and Affidavit.
- The affidavit must be sworn in front of a practicing solicitor.
- The Notice of Application is lodged with the District Court and the Affidavit is lodged with the CRO. It must be lodged with the CRO 21 days before the appeal is set to be heard and the CRO have right to object within this timeframe.
- The appeal is heard by a District Court judge and it can either be granted or rejected.
- If granted the company is given a once off extension that allows it to file the annual return that otherwise would have been late. All late filing fees and any audit requirements that were imposed due to late filing of that annual return are also waived. If the previous annual return was filed late then the audit requirement will still apply.
- The court order is filed with the CRO as soon as possible and the annual return is then filed before the new ARD.
As per above, it is not an overly complicated process. However, there are some key points to note.
The appeal must be heard in the District Court of the registered office of the company at the time of the appeal. There is no prohibition on the company changing registered office in the weeks preceding the appeal.
Annual Returns Eligible
Section 343 clearly states that only annual returns falling on or after the date of commencement of the Companies Act 2014 are eligible to avail of the application process. In spite of this, many applications were successfully granted for ARDs preceding 1 June 2015 prior to 17 May 2016. However, CRO have now clarified that they will object to any such appeal as of 17 May 2016. It is thought that the lack of objection in the period to 17 May has allowed many of the historical late filing companies to get up to date. While companies may still apply, an objection letter from CRO would seem to lessen the chances of a successful application.
Reason for being late
Under the old Act, the waiver scheme suggested that the only acceptable reasons for late filing were force majeure type events – this might include a death or serious illness. Not for profit charities were allowed to file late and companies that had incurred a verifiable postal delay could also seek to avail of the waiver scheme.
From our experience to date it is clear that there have been many reasons put before the District Court as to why the companies had missed their annual return. They ranged from the death of a director to a clerical error made by the accountant in the submission of the return. We are not aware of any applications that have failed (however the number and success rate of the applications made has not been published).
In their e-zine issued on 17 May 2016, CRO clarified their position on acceptable reasons for a company missing its ARD. They note that they will object if the affidavit does not clearly demonstrate why it was not possible for the annual return to be delivered on time. See extract below:
‘The Registrar reserves the right to object to any application in the District Court for such an Order where, in the opinion of the Registrar, 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 to the CRO within the time permitted by sections 343(2) or 343(3), Companies Act 2014, and are therefore not sufficient to warrant setting aside the company’s legal obligations under the Act.’
Our interpretation of this clarification is that companies will now have to be very clear in setting out the facts surrounding the non-delivery of the annual return on time to the CRO. Whether the CRO objects or not, it is at the discretion of the District Judge on the day of the appeal to grant the extension or not. To date we are not aware of any objections being made by the CRO but the expectation is that this will change in the future.
There is precedent for companies representing themselves in the Irish court system, however, in a number of instances where the directors have elected to represent the company in court (for S 343 appeals) the judges have adjourned the appeal until such time as they obtain legal representation. This would imply that the safest and most efficient way to successfully appeal is to engage representation from the outset.
When the order has been granted, it must be lodged with the CRO as soon as possible. This order grants an extension to file the annual return and sets out the date by which the financial statements must be filed. An application cannot be made again for that ARD but the same company can apply in a subsequent year (although technically allowable this may present a difficulty for judges if companies are perceived to be ‘repeat offenders’).
One the order is filed, the accounts and B1 must then be filed within the specified timeframe. This can be as much as 8 weeks after the court date but the applicant should check as each application can be different.
A B1 must be filed with a filing fee of €40 (€20 if filed electronically). The order must be received before an electronic B1 can be filed.
Frequently Asked Questions
Q: Can the company directors represent it in court?
A: Technically there is precedent on other matters but our only experience of director representation in relation to S 343 appeals has been of the directors being asked to obtain legal representation.
Q: How long does the process take?
A: Once the company agrees to go ahead with the appeal the paperwork can be provided within 5 working days or less. It must then be signed and sworn. There is a 21 day notice period for CRO. A court date can generally be obtained within 4-5 weeks (this can vary) of making the application in Dublin with certain courts around the country allocating specific dates, e.g. the third Wednesday of every month. From start to finish it should not take any more than 8 weeks.
Q: My company is strike off listed – can I make an application?
Technically the answer to this question is yes however, it is unlikely that any companies with ARDs after 1 June 2015 are currently strike off listed. But assuming it is, yes the company can apply for the extension and once the papers are lodged with CRO it may prevent the company from being struck off in advance of the court date. There are no guarantees in relation to this though.
Q: Which court will the appeal be heard in?
It will be heard in the District Court in which the registered office is. The registered office can be changed in advance of the application.
Q: What happens if the appeal is successful?
The court order granting the extension is lodged with the CRO and the financial statements, B1 and appropriate fee must be lodged before the date granted by the Court.
Q: What happens if the appeal is unsuccessful?
The company will be being late filing and must file its annual return and audited financial statements along with any penalties arising.