Client Alert – Court application to extend filing date

Section 343(5) Court Applications

A Lifeline Extended by the Companies Act 2014

A missed Annual Return Date (ARD) can have onerous consequences for a company, including loss of audit exemption, penalties levied by the CRO and ultimately may result in the involuntary strike off of a company.

However sometimes deadlines are missed. The 2014 Companies Act introduced a method of relief for companies who find they have missed their ARD. An application can now be made to the District Court, who may, if satisfied that it is just to do so, make an order to extend the time allowed for the company to submit its annual return.

As a court will have to be convinced is it just to grant the extension, it will be necessary to demonstrate a compelling reason why the deadline could not be met.

Advance notice of the intended application must be served on the Registrar of Companies in the prescribed format. The application is normally heard and determined by way of affidavit, which should include the specific facts and circumstances which have precluded the company honouring its annual filing requirements and why it would be just for the Courts to grant such an extension as well as a declaration of service of the notice on the Registrar of Companies.

The affidavit must be sworn by an officer of the company and include the period of extension sought. Careful consideration should be given to this extension, as the Court will not entertain more than one application per filing period per company. Whilst it has yet to be demonstrated in actual practice, it is assumed that the Court will take a very dim view of repeated or annual applications made on behalf of the same applicant company over subsequent filing periods.

If for any reason the Court is not satisfied with the affidavit and accompanying exhibits, at its discretion the Court may direct that further or supplemental evidence in the matter must be given viva voce and under oath by an officer of the company or such person as nominated by them.

Once the Court is satisfied that it is just to order, the company will be granted an extended deadline to make their annual return filing. Normal rules would apply to this date i.e. the applicant company’s annual return must be made within 28 days of the extended ARD and compliant financial statements must be lodged in support of this return within 28 days of the filing of the annual return forms.

An Order for extension of the ARD does not change the company’s original ARD but merely extends the deadline for the current filing period. Should the company not make the required filing within the 28 day deadline of the extended ARD, the company will be subject to loss of audit exemption (if any) and to penalties levied by the CRO from the date of the original annual filing deadline.

For further information regarding court ordered extension of annual return deadlines, please contact Maeve Walsh at mwalsh@reddycharlton.ie or on +353 1 265 0830.