Restoring a struck off Company to the Register of Companies
Options available to a Company or its Creditors
Options available to the Company or its Creditors
Company Restoration by a Creditor
A creditor can often be frustrated from recovering debts from a Company when the Company has been struck off the Register of Companies for a period over 12 months. The biggest cause of a Company being struck off the Register is for failing to file annual returns. Once a Company is struck off, the property belonging to the Company vests in the State and a creditor is precluded from issuing proceedings against the Company as they are no longer a legal entity.
However, there is a relatively simple and low cost means of restoring the Company to the Register by the creditor. A Company can be restored following a Motion to the Circuit Court provided the creditor can prove that they were an existing creditor of the Company prior to the Company being struck off.
The Registrar of Companies, the Minister for Public Expenditure and Reform and the Revenue Commissioners must be notified of the intention to bring the Motion to restore the Company to the Circuit Court. They must all consent to the application being brought.
In order for the Registrar of Companies to consent, they require the following to be complied with:-
- The Officers of the company must be notified of the hearing and served with a copy of the Motion, Grounding Affidavit and Exhibits.
- The Motion must seek the delivery of all outstanding annual returns to the Registrar.
- It must also seek an order that outstanding statements as required by Section 882 of the Taxes Consolidation Act 1997 must be furnished to the Revenue Commissioners.
- If necessary, the Motion must also seek that the company appoint a director under the terms of the Companies Act 2014 in order to comply with the Order.
- The Court Order must be delivered to the Companies Registration Office together with a fee of €15 within 28 days of the perfection of the Order, failing which the Order will lapse.
In order for the Minister of Public Expenditure and Reform to consent, a fee of €350 must be lodged with the Chief State Solicitor’s Office (CSSO). The CSSO will require the order to state that it will lapse if not filed with the Registrar of Companies within 28 days of its perfection.
The Revenue will generally consent to the application but will appear in Court to seek their own Orders.
Once the Notice of Motion and Grounding Affidavit are sworn, stamped and filed, a certified copy is served on the Directors and Secretary of the Company together with the Notice Parties referred to above.
A Declaration of Service must be sworn and filed in the Circuit Court prior to the hearing date. Once the consent letters are obtained from the Companies Registration Office and Chief State Solicitor’s Office, they can be exhibited by way of Supplemental Affidavit and filed in the Circuit Court prior to hearing.
The Motion must set out that the debt was owed by the Company when it was struck off the Register. It should also set out why the Creditor is at a loss due to the Company having been struck off and that it would be just and fair to restore the Company. It must also confirm that the creditor is making no claim that the Minister for Public Expenditure and Reform nor the State, has in any way, either directly or indirectly, intermeddled in the assets of the Company.
If the creditor is successful, an Order setting out grounds sought in the Motion, together with the Orders sought by Revenue should be drafted and forwarded to the relevant Circuit Court for perfection. Once the Order has been perfected, it must be served on the Companies Registration Office within 28 days together with their fee of €15. Shortly thereafter, the Companies Registration Office will restore the Company to the Register. The Restoration of the Company is valid for two years.
Company Restoration by the Company (less than 12 months)
If a Company has been struck off within the last twelve months its Directors can apply to the Companies Registration Office to restore the company to the Register by filing a H1 Form together with a filing fee of €300.00. This form must be received within twelve months from the date the Company was struck off. If payment is being made by cheque, the application cannot be processed until the cheque has cleared, which can take up to four weeks. Therefore if the restoration is urgent, then a bank draft should be attached to the application.
In order to restore the company, the following conditions must be met within fifteen months from the date of the dissolution of the company:-
- S137(1) of the Companies Act 2014 must be complied with. The Company must have an EEA resident director. There is a bond requirement to the value of €25,000.
- The directors must all be registered correctly as required under Section 149(8) of the Companies Act 2014.
- All outstanding returns and financial statements must be filed. If there is more than one financial year to be filed, only the first year can be filed electronically using the B1 form, the rest must be filed manually. The fee is €40 per return together with the relevant filing penalties.
- If the Company was struck off for failure to comply with Revenue requirements, the Registrar of Companies will require written confirmation from Revenue that all outstanding statements, etc., have been filed before restoring the Company to the Register.
Company Restoration by the Company (over 12 months)
If a Company has been struck off the Register for more than twelve months and for less than twenty years, its Directors can apply to the High Court to have the Company restored to the Register.
The Director should send a signed letter to the Enforcement Section of the CRO requesting a letter of no objection to be furnished by the Register. This is generally furnished subject to the Company providing the following:
- Filing all outstanding annual returns.
- If the Company was struck off for non-compliance with Revenue Commissioner Requirements the CRO will require written confirmation from Revenue that the relevant returns have been filed.
The CRO will then issue a letter of no objection on the basis that the Order restoring the Company is filed with the Register of Companies within 28 days of the perfection of the Order together with the filing fee.
In circumstances where the Company can show there is good reason that it is not in a position to file all returns prior to the hearing date, the Companies Registration Office can furnish a letter of no objection which is conditional on the relevant returns being filed within a set timeline set out in the Court Order. Failure to comply with same will result in the Restoration Order lapsing.
Therefore, depending on whether you are the Company or a creditor, the company can be restored to the Register of Companies in a number of ways. The Restoration Order is generally valid for two years but this can be extended at the discretion of the Registrar if there is good reason to extend same. This will generally be from the point of view of creditors where recovery of debt proceedings are ongoing etc. The CRO will generally require proof in the form of stamped proceedings to confirm that same are still ongoing and the debt has yet to be recovered before issuing a stay on the strike off of the Company.
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