Company Restorations with Robert Emmet Bourke & Company
Updated: Aug 2
We have extensive experience with company restorations and our process is both time and cost efficient. As a result, we understand the concerns of our business clients and we pride ourselves on delivering an efficient and prompt process. We have experience in dealing with Private Limited Companies, Public Limited Companies, while dealing with the required consents of the Regulatory Authorities including the Office of the Revenue Commissioners and the Companies Registration Office.
If a company has been struck-off the Register the consequences are very serious and range from; the assets of the company being handed over to the State; it ceasing to exist as a legal entity (meaning it cannot bring legal proceedings, neither can legal proceedings be brought or maintained against it); the protection of limited liability is lost and the owners, members or directors trade in their personal capacity and are therefore personally liable; it can no longer secure finance and its directors may be subject to a disqualification order.
N.B: All applicants seeking to restore a company must show that they have been ‘disadvantaged’ by the strike-off.
There are two methods of restoring a company in Ireland;
1. Where a company has been struck-off for within the last 12 months
Also known as Administrative Restoration, in these circumstances an application for restoration can be made to the Registrar of Companies. The documentation required varies based on whether the company was struck off by the CRO or the Revenue. To restore a company that has been struck off within the last 12 months, the following criteria must be present;
a. officer of the company must be available to be present at the Companies Registration office to process the application for restoration and to process any other queries arising from the Companies Registration Office;
b. application must be made within 12 months of the company being struck off;
c. No share allocations may have been made during the period where the annual returns are being filed;
d. All outstanding annual returns must be filed at this point which may include all penalties & fees.
We have considerable experience with these applications, and we are cognizant of the issues of concern to clients, as well as the real-life considerations for the business and its directors
2. Where a company has been struck off for more than 12 months ago
Restoration by Court Order is available provided that 20 years has not elapsed since the date of the companies dissolution, the company itself, or any member, may make an application to the High Court for restoration where the company was struck off voluntarily at the request of the company or by an officer or member of the company where the company was struck off for non-filing of annual returns, or at the request of Revenue for non-delivery of a statement. This process involves an application to the High Court, preparing court documents and attending before Court to move the application. Restoration by Court Order is a more complex and labour-intensive process than applications being for less than 12 months, and as such, the costs and fees are higher. As we process restorations on a monthly basis and we move all applications in Court on the same date, this efficient process allows us to pass the savings on to our clients.
What Does Being Struck off the Register Mean and how can it Occur?
If a company is struck off the Register of Companies in Ireland, the Company in affect no longer exists. It is dead/dormant. This results in the Company not being able to deal with the property it holds in any way. For instance if a Company owns a building (property) and is then struck off, the Company cannot transfer the property to a third party until it is restored. Underwriters may refuse to write new policies for the Company, may cause existing policies to default – leading to the asset being uninsured which can lead to drastic consequences for the Company, it’s official and it’s members (Shareholders). Bank accounts may also be frozen. This all means that the any property cannot be dealt with by the Company. The property then vests in the State, preventing the Company from exercising it’s rights and obligations vis-á-vis the property.
A company may be struck off voluntarily (by way of special resolution etc) or involuntarily. For the purposes of this article, we will deal with involuntary Strike Offs.
A company may be struck off involuntarily under Section 733, following a notice under section 730 and Section 726 being served on the Company without being remedied. Reasons for such notices being served and leading to the involuntary strike off include:
· Failure to make annual returns;
· Failure to deliver statement required under section 882 of the 2014 Act;
· Registrar having reasonable cause to believe that Section 137(1) (Director to be Resident in the EEA) is not being complied with in relation to the Company;
· The company is being wound up and the Registrar has reasonable cause to believe that no liquidator is acting;
· The company is being wound up and the Registrar has reasonable cause to believe that the affairs of the company are fully wound up and that the returns required to be made by the liquidator have not been made for a period of 6 consecutive months;
· There are no persons recorded in the office of the Registrar as being current directors of the Company.
The Registrar shall publish in the CRO Gazette a notice of the striking of a company off the register. The Company is dissolved on the date of publication by the Registrar of the notice in the CRO Gazette of its being struck off the register and that date is referred to subsequently as the “date of dissolution”.
A High Court Restoration Application
An application to restore the Company is required to be brought to the High Court if the application has not been received by the Registrar within 12 months of the Company being struck off (Section 737 – brought within 12 months). An application under Section 738 will be necessary. This application can be brought by a part that has the locus standi to bring same:
· The Company;
· A creditor of the Company;
· A person who was a member (shareholder) or an officer of the Company at it’s date of dissolution; or
· A person who, at the date of the Company’s dissolution, had an entitlement to be registered as a member of the Company.
The application must be made within 20 years of the date of dissolution. As part of the application, it is necessary for the applicant to show that they/the Company has been disadvantaged in some way by the Company being struck off – such as property vesting in the State and the Company being unable to assert its rights and obligations over the property.
For an Order for the restoration of the Company to be made the following must be completed:
· All annual returns must be filed with the CRO;
· All outstanding statements as required by Section 882 of the Taxes Consolidation Act 1997 must be delivered to the Revenue Commissioners;
· Letter of consent/no objection from the Registrar of Companies to the restoration of the Company;
· Letter of consent/no objection from the Revenue Commissioners to the restoration of the Company;
· Letter of consent/no objection from the Chief State Solicitor’s Office for and on behalf of the Minister of Public Expenditure and Reform and the Registrar of Companies.
If an Order is made for the restoration of the Company is made, it may contain certain provisions as per Sections 740 – 743, including the delivery of the Order to the Registrar of Companies within 28 days of the date of its perfection. Once a Company has been restored, the Order has the effect that the Company shall be deemed to have continued in existence as if it had not been struck the Register.
Contact us to find out more about these types of restoration applications.
If you have any restoration queries, or any questions arising from any of the above information, please feel free to make contact with Robert Bourke at firstname.lastname@example.org or on 01-5677320 and we will be happy to answer any questions you may have.