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Companies Act 2014

The Companies Act 2014

The Companies Act 2014 came in to operation on 1st June 2015 and is the single biggest piece of legislation enacted in the history of the State.

It consolidates and updates the previous 17 Companies Acts into one single piece of legislation and consists of 1,448 sections; broken down into 25 Parts. This represents a significant change for Irish Companies and Irish Company Directors.

There are certain clauses that an existing private limited company (EPC) needs to be aware of and we are here to help you, the directors, through this time of change.

Types of Companies

 

Existing private companies can convert to:

  • The new form of private company limited by shares (LTD) or
  • A designated activity company (DAC)

The majority of existing private limited companies will choose to convert to the new form of private company limited by shares (LTD).  Only companies which perform a designated activity will convert to a DAC.

Transition Period

The new Act provides for a transition period of 18 months, between 1st June 2015 – 30th November 2016 for the conversion to a LTD.

Company Constitution

Under the new Act, the Company’s Memorandum and Articles of Association will be known as the Company’s Constitution.

As part of making this change, the Company may take the opportunity to update its existing Rules and Regulations, if needs be.

Main points relating to the new LTD company

A LTD will be governed by a single document, known as its Constitution.  This replaces its current Memorandum and Articles of Association.

A LTD is not required to have an Objects Clause. Under the new Act, it will have full capacity to enter into transactions and undertake any business or activity.

A LTD may have only one director. However, in such cases, a different person must be appointed Company Secretary.

A LTD may dispense with holding an Annual General Meeting.

A LTD does not require an authorised share capital.

Company Limited by Guarantee

The name of the company will have to change to replace the suffix Limited with Company Limited by Guarantee or CLG and the Articles of Association should be reviewed to reflect the new Companies Act and to deal with any issues regarding membership of the company.

Company Name

A LTD’s name will end with “Limited” or “Teoranta”, which after its registration may be shortened to “Ltd” or “Teo”.

Changes to the company name will affect company letterheads, stationery and signage. Any documentation submitted to the CRO after 30th November 2016 which bears the incorrect name will be refused.

If no change is made

If no change is made, at the end of the transitions period, the company is deemed to be a LTD under the new Act.  The existing Memorandum and Articles of Association will continue to apply unless they are inconsistent with the mandatory provisions of the new Act.  Any references in the Company’s existing Memorandum or Articles to a provision of the prior Companies Acts will be read as a reference to the corresponding provision of the new Act.  This will add an extra challenge when attempting to find out a Rule that governs the Company as sections in the old Act must be compared with sections in the new Act.  If these Rules do not agree with the mandatory sections of the new Act, the new Act prevails.

Almost all companies who do not change, will end up being governed by the Companies Act, 1963, its old Memorandum and Articles of Association and the Companies Act 2014.  This is likely to be unacceptable to your bank or other funders of the company who would expect that the company has an up-to-date Constitution that is clear and easy to follow.   It may also lead to confusion for the Board of Directors and the Members.

It is the duty of each Director to ensure that the company complies with the new Act.

Conclusion

We recommend that each company should adopt a new Constitution which satisfies the requirements of the new Act and re-registers as a LTD or DAC.  We believe that the continuance in force of the existing Memorandum and Articles in the manner outlined above is “untidy” and could be confusing for users in the future.

It is important to remember that the company may be party to an agreement or Deed under which any change in the company’s Constitution requires third party approval.  All agreements, facility letters, security documentation, shareholder agreements, etc., should be checked in this regard.

If you have any questions regarding the impact of the Companies Act 2014 or if you wish to make these changes, please feel free to give us a call. We would be pleased to assist you in any way that we can.

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Companies (Accounting) Bill 2016

The Companies (Accounting) Bill based on the EU Accounting Directive (Directive 2013/34/EU) has been published.

The Bill proposes to introduce a small companies regime and a micro companies regime which, when enacted, will allow for the use in Ireland of Section 1A of FRS 102 The Financial Reporting Standard applicable in the UK and Republic of Ireland by small companies and FRS 105 The Financial Reporting Standard applicable to the Micro-entities Regime by micro companies. Small and micro companies are as defined, see section 15 of the Bill. The thresholds for small companies are proposed to be raised to the EU maximum levels of: turnover not exceeding €12 million and balance sheet total not exceeding €6 million.

If passed in its current form the new definitions for Micro, Small and Medium companies will be as follows: –

Micro company    Small company     Medium company

Net Turnover                                                                                                  €700,000        €12,000,000             €40,000,000

Balance sheet total                                                                                        €350,000          €6,000,000             €20,000,000

Average No. Employees                                                                                             10                        50                           250

 

The requirement is still that if any 2 of the 3 thresholds listed are fulfilled then the company qualifies in that category.

These new Micro, Small and Medium companies will all be eligible to file abridged financial statements.  The proposed content requirements of each form of abridged financial statements are set out in the Bill.  The Micro and Small companies will also be eligible for audit exemption.

Running to 92 sections and 161 pages, the Bill contains new Schedules to replace the current Schedules 3 and 4 to the Companies Act 2014. These new Schedules separate the general entity and group financial statements requirements (Schedules 3 and 4) from those pertaining to small companies (Schedules 3A and 4A) and micro companies (Schedule 3B).

Payments to Government

The Bill also proposes to insert a new Part 26 ‘Payments to Governments’, containing the Directive’s requirements with regard to preparing and filing with the CRO, by large companies, large groups and public interest entities active in the mining and extractive industries, annual reports on payments made to governments.

Companies Act 2014 – Amendments

Also included in the Bill are other amendments to various sections of the Companies Act 2014 covering, for example, reporting to the ODCE; priority of charges; filing requirements for unlimited companies; matters relating to IAASA and the prescribed accountancy bodies; and the corporate governance statement required in section 1373 of the Companies Act 2014.

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Charities Act 2009

Introduction

The Charities Act 2009, represents a very significant milestone for community and voluntary activity in Ireland. The purpose of the Act is to reform the law relating to charities in order to ensure greater accountability and to protect against abuse of charitable status and fraud and to enhance public trust and confidence in charities and increase transparency in the sector.

Key aspects of the Act

 

Key aspects of the Act provide for:

  • a definition of charitable purposes for the first time in primary legislation
  • the creation of a new Charities Regulatory Authority to secure compliance by charities with their legal obligations and also to encourage better administration of charities
  • a Register of Charities in which all charities operating in the State must register
  • the submission of annual activity reports by charities to the new Authority
  • updating the law relating to fund-raising, particularly in relation to collections by way of direct debits and similar non-cash methods
  • the creation of a Charity Appeals Tribunal;
  • the provision of consultative panels to assist the Authority in its work and to ensure effective consultation with stakeholders.

The Act, together with the Charities Acts 1961 and 1973, and the Street and House to House Collections Act 1962, provides for a composite regulatory framework for charities through a combination of new legislative provisions and retention of existing charities legislation, with updating, where appropriate.

Summary of the Main Implications

 

Summary of the main implications of the Charities Act –

There is now a Charities Regulator that maintains a Register of Charities that will be available to the public.

All charities have to secure inclusion in the Register of Charities.

Existing Charities (those currently recognised by the Revenue Commissioners) were deemed to be charities by the Regulator and were included in the Register. In time, the Regulator will verify the continuing bona-fides of these charities.

Any other organisations that present themselves to the public as being charities, or fundraise for charitable purposes, will have to apply for, and secure inclusion in the Register.

It is an offence for an organisation that is not a registered charity to describe itself in terms that would cause the public to believe that it is a charity.

The Regulator will have discretion to reduce the amount of documentation required from a charity when registering (if it thinks that supplying all the specified information would be unduly onerous to the charity concerned).

There will be no automatic entitlement to the tax relief schemes operated by the Revenue Commissioners who will continue to determine eligibility for tax reliefs for charities registered with the Charity Regulator.

Charities will be able to advocate for political causes that are directly related to the furtherance of their charitable purposes.

 

All charities will have to submit an Annual Activity Report to the Charities Regulator. The Minister will consult with the sector on what the content of Annual Activity Reports should be.

Charities that are Companies Limited by Guarantee will continue to be bound by the requirements of Company Law in relation to submitting accounts to Companies Registration Office.

Companies Registration Office will automatically forward Annual Returns by Charities that are companies to the Charity Regulator (to minimise the demands made by dual reporting).

Financial Reporting Requirements:

 

Charities that are not companies will face the following financial reporting requirements: –

  • Organisations with income above a yet to be prescribed threshold of up to a maximum of €100k per annum will be required to submit audited accounts to the Regulator
  • Charities with income less than the yet to be prescribed threshold may submit examined accounts (less demanding and expensive to produce).
  • Charities with income/expenditure of less than €10,000 per annum will not be required to submit audited or examined accounts, but will have to include a summary of their finances in their Annual Activity Report.

Similar general requirements will apply for all fundraisers/collectors whether they are collecting cash or non-cash (direct debits, standing orders etc.) donations – and will include such things as the wearing of garments and the display of charity details.

Charities will have to show their charity name and number on collector’s garments and on collection boxes. Cash collection boxes will have to be sealed but the Regulator will have the discretion to make exceptions to the sealed collection box rule to enable those charities that offer fixed-price tokens to make change for donors.

The Regulation of Fundraising

 

There will be a three pronged approach to the regulation of fundraising:

  • Garda Permits will be required for all types of fundraising including non-cash collections.
  • Requirements are set out for the conduct of both cash and non-cash collections.
  • Details of fundraising activity and income will be required in the Annual Activity Report/Annual Returns

The operational and administrative fundraising issues are to be regulated by means of agreed codes of practice to be developed with the sector. If this approach proves ineffective the

Minister has reserved the power to legislate on the issue.

Remunerating a Trustee/s

 

A charity will be permitted to remunerate a trustee/s for providing a service for it – as long as that service does not relate to the performance of their duty as a Trustee. Charities will now be able to indemnify their trustees out of charitable funds for any act done, or omitted from being done, in good faith and in the performance of his or her functions as a charity trustee.

Relief from Personal Liabilities

 

The High Court will be able to grant relief from personal liabilities for trustees where in the opinion of the court a trustee has acted in good faith and in line with their fiduciary responsibilities

Foreign Based Charities

 

There will be no requirement for foreign-based charities to have a registered place of business in Ireland prior to their registering with the Regulator.

 

Charity Appeals Tribunal

 

A Charity Appeals Tribunal will be established to enable organisations to challenge decisions made by the Regulator.

Implications

 

There are huge implications – will sports clubs be included? how about religious bodies, they are not keen to publish Accounts for some of their trusts. You may learn much from the disclosures made in compliance with the Act –  how much your local priest is paid, how much the bishop is paid and how much the rector gets in comparison. There will be field days for the press.

 

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