Companies (Amendment) (No. 2) Act, 1999
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Power of registrar to strike company off register for failure to make annual return. |
46.— The Companies (Amendment) Act, 1982 , is hereby amended by the substitution of the following sections for section 12 (as amended by the Companies Act, 1990 ): | |
“12. (1) Without prejudice to the generality of section 311 of the Principal Act, where a company does not, for one or more years, make an annual return required by section 125 or 126 of the Principal Act, the registered letter stating that, unless all annual returns which are outstanding are delivered to him within 1 month of the date of the letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register. | ||
(2) If the registrar of companies either receives an answer to the effect that the company is not carrying on business, or does not within 1 month after sending the letter receive all annual returns which are outstanding, he may publish in Iris Oifigiúil a notice stating that, at the expiration of 1 month from the date of that notice, the name of the company mentioned therein will, unless all outstanding returns are delivered to the registrar, be struck off the register, and the company will be dissolved. | ||
(3) Subject to subsections (1) and (2) of section 12B of this Act, at the expiration of the time mentioned in the notice, the registrar of companies may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in Iris Oifigiúil and on the publication in Iris Oifigiúil of this notice, the company shall be dissolved. | ||
12A. (1) Where the Revenue Commissioners give a notice in writing under subsection (3) of section 882 (inserted by the Finance Act, 1999 ) of the Taxes Consolidation Act, 1997 , to the registrar of companies stating that a company has failed to deliver a statement which it is required to deliver under that section, then, without prejudice to section 311 of the Principal Act or section 12 of this Act, the registrar may send to the company by post a registered letter stating that, unless the company delivers to the Revenue Commissioners the said statement within 1 month of the date of the letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register. | ||
(2) If the statement referred to in subsection (1) of this section is not delivered by the company concerned to the Revenue Commissioners within 1 month after the sending of the letter referred to in that subsection, the registrar of companies may publish in Iris Oifigiúil a notice stating that, at the expiration of 1 month from the date of that notice, the name of the company mentioned therein will, unless the said statement is delivered to the Revenue Commissioners, be struck off the register, and the company will be dissolved. | ||
(3) Subject to subsections (1) and (2) of section 12B of this Act, at the expiration of the time mentioned in the notice, the registrar of companies may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in Iris Oifigiúil and on the publication in Iris Oifigiúil of this notice, the company shall be dissolved. | ||
12B. (1) The liability, if any, of every director, officer and member of a company the name of which has been struck off the register under section 12(3) or 12A(3) of this Act shall continue and may be enforced as if the company had not been dissolved. | ||
(2) Nothing in subsection (1) of this section or section 12(3) or 12A(3) of this Act shall affect the power of the court to wind up a company the name of which has been struck off the register. | ||
(3) If any member, officer or creditor of a company is aggrieved by the fact of the company's having been struck off the register under section 12(3) or 12A(3) of this Act, the court, on an application made (on notice to the registrar of companies, the Revenue Commissioners and the Minister for Finance) by the member, officer or creditor, before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of the company be restored to the register, and, subject to subsection (4) of this section, upon an office copy of the order being delivered to the registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order is referred to in subsection (4) of this section as an ‘alternative order’). | ||
(4) An alternative order may, if the court considers it appropriate that it should do so, include a provision that, as respects a debt or liability incurred by, or on behalf of, the company during the period when it stood struck off the register, the officers of the company or such one or more of them as is or are specified in the order shall be liable for the whole or a part (as the court thinks just) of the debt or liability. | ||
(5) The court shall, unless cause is shown to the contrary, include in an order under subsection (3) of this section, being an order made on the application of a member or officer of the company, a provision that the order shall not have effect unless, within 1 month from the date of the court's order— | ||
(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, all outstanding annual returns required by section 125 or 126 of the Principal Act are delivered to the registrar of companies, | ||
(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997 , are delivered to the Revenue Commissioners. | ||
(6) The court shall, in making an order under subsection (3) of this section, being an order that is made on the application of a creditor of the company, direct that one or more specified members or officers of the company shall, within a specified period— | ||
(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, deliver all outstanding annual returns required by section 125 or 126 of the Principal Act to the registrar of companies, | ||
(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, deliver all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997 , to the Revenue Commissioners. | ||
(7) The court, on an application made by the registrar of companies (on notice to each person who, to his knowledge, is an officer of the company) before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of a company which has been struck off the register under the said section 12(3) or 12A(3) be restored to the register and, upon the making of the order by the court, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order may, if the court considers it appropriate that it should do so, include a provision of the kind referred to in subsection (4) of this section). | ||
(8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or, if no office has been registered, to the care of some officer of the company, or, if there is no officer of the company whose name and address are known to the registrar of companies, may be sent to each of the persons who subscribed to the memorandum, addressed to him at the address mentioned in the memorandum. | ||
(9) Without prejudice to section 2(1) of the Principal Act where such an application is made by any other person, in the case of an application under this section that is made by a creditor of the company or the registrar of companies, ‘the court’, for the purposes of this section, means the Circuit Court. | ||
(10) An application under this Act to the Circuit Court by a creditor of the company concerned shall be made to the judge of the Circuit Court for the circuit in which the registered office of the company was, immediately before it was struck off the register, situated or, if no office was registered at that time, for the circuit in which the creditor resides or, in case the creditor resides outside the State, for the Dublin Circuit. | ||
(11) An application under this section to the Circuit Court by the registrar of companies shall be made to the judge of the Circuit Court for the Dublin Circuit. | ||
12C. (1) Without prejudice to the provisions of section 311(8) or 311A(1) of the Principal Act or subsection (3) or (7) of section 12B of this Act, if a member or officer of a company is aggrieved by the fact of the company's having been struck off the register under section 12A(3) of this Act, the registrar of companies, on an application made in the prescribed form by the member or officer before the expiration of 12 months from the publication in Iris Oifigiúil of the notice striking the company name from the register, and provided he has received confirmation from the Revenue Commissioners that all outstanding, if any, statements required by section 882 of the Taxes Consolidation Act, 1997 , have been delivered to the Revenue Commissioners, may restore the name of the company to the register. | ||
(2) Upon the registration of an application under subsection (1) of this section and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off. | ||
(3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration. | ||
12D. If the question of whether a statement which a company has failed to deliver to the Revenue Commissioners in accordance with section 882(3) of the Taxes Consolidation Act, 1997 , has or has not been subsequently delivered to them falls to be determined for the purpose of the exercise by the registrar of companies of any of the powers under sections 12A to 12C of this Act, the Revenue Commissioners may, notwithstanding any obligations as to secrecy or other restriction upon disclosure of information imposed by or under statute or otherwise, disclose to the registrar any information in their possession required by him for the purpose of that determination.”. |