REPUBLIC OF IRELAND
IRISH COMPANY LAW GUIDE
The Republic of Ireland accounts for more company registrations than any other legal jurisdiction within the islands of Ireland and Britain. The reason for this partly emanates from the recent economic "boom" and the introduction of a 12.5% corporate tax but primarily because it is a separate sovereign state unlike both Scotland and Wales.
The principal governing legislation for all Republic of Ireland companies can be found in the Companies Acts', 1963 to 2001, which although similar to the legislation employed in Northern Ireland and the United Kingdom, nevertheless is considered to be more restrictive. The principal features of Republic of Ireland companies are:
1. Directors must be individuals and not corporate entities.
2. At least one of the named individual directors must be resident in Member State of the EEA" (European Economic Area). The EEA consists of the 27 member states of the EU, (Austria, Belgium, Bulgaria, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, United Kingdom, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia and Romania), plus Iceland, Liechtenstein and Norway. There are no other constraints on non-resident or foreign directors.
3. A company secretary can be either an individual or company and may or may not be resident in the State.
4. All companies must have at least one subscriber/shareholder at the time of incorporation although as with the other positions mentioned above initially these will be taken by your company registration agent who upon registration will resign and appoint the permanent officers.
5 The company must at the time of incorporation be very specific about its intended objects and complete a NACE Code.
6 Generally ready-made or shelf companies are not available due to the requirement to be specific about a company's intended objects.
7 The Companies Registration Office (CRO) does not offer a same day expedited service as available in the UK and many States in the United States. However, EUROFINANZZA is part of the Fe Phrainn Scheme, which means that company registration should take no more than 10 working days.
8 Irish law demands that all limited companies have an official seal.
9 Any alterations to a company's structure will normally require the payment of a small government duty.
10 Stamp duty is approximately 1%, which is levied upon issued but not nominal share capital.
11 Shares should ideally be denominated in Euros (€'s).
Prior name approval is not required by the Registrar, and he will only refuse a name if it is identical, or almost identical to an existing name, implies State sponsorship or is generally thought to be offensive. Use of certain words such as “bank”, “insurance”, and “” require special permission. Companies wishing to make an objection to a new company name have six months within which to do so. Names may not be “reserved”, as in other jurisdictions.
Note: (1) While names can be checked on your behalf, an absolute guarantee cannot be given. The Registrar of Companies makes the final decision as to whether a name will be permitted and his/her decision is final.
Note: (2) We do not recommend that stationery, signs or other products of this nature are ordered/printed until the Certificate of Incorporation has been issued by the Companies Registration Office.
DUTIES, RESPONSIBILITIES & COMMON TERMS EXPLAINED
Irish companies require at least two individuals over the age of 18 to act in the capacity of director with at least one such director being a permanent resident of a Member State of EEA . In simple terms, the directors constitute the decision making body of a company commonly known as the board of directors and are liable at law for a company's actions. The directors have a duty of care to the shareholder(s) of the company to act in the company's best interests even where doing so might come into conflict with their own personal interests. The concept of a company being a fully separate legal entity to the directors is accepted in Irish law save where they have acted in a fraudulent and/or reckless manner which could not be deemed reasonable by normal standards - In which case, the corporate "veil" can be lifted fully exposing the individuals behind a company to the full rigors of both civil and criminal law. However, in the vast majority of cases this will not occur provided the board of directors have acted in good faith even if their decisions have negative consequences for the company.
However, with the passing of the Companies Amendment Act, 1999 one Director must be resident (i.e. at least 183 days per annum) in the Republic of Ireland. If a company has no Irish resident Directors, then it may enter into a Bond for €25,395. The Bond is arranged by obtaining an insurance policy. Alternatively, if the Company can prove that it has a “real and continuous link with one or more economic activities in the State” then it may be exempted from the requirement for a resident Director. The Revenue Commissioners decide if there is a “link”.
A company secretary occupies a pivotal position in an Irish company and has direct legal responsibility to maintain company records, file annual returns and/or carry out any other functions that may be elucidated within the Memorandum & Articles of Association. Like a Director a Company Secretary has a duty of care to the shareholders/subscribers.
SHAREHOLDERS – SUBSCRIBERS
Under Irish law there may be only one initial shareholder/subscriber although it is common to have two or more after the registration of a company by the company registration agents.
The nominal share capital of a company is the potential amount of shares that a company has available for future distribution. The issued share capital is literally the amount of shares that a company has issued out of its potential nominal share capital. In the case of most domestic Irish companies the company registration agent will initially issue the minimum number of shares, normally one or two, with an individual nominal value of €1.00 each. After the receipt of the company documentation the permanent company secretary will normally lodge the stock transfer form(s) to officially transfer the shares issued by the company registration agent to the permanent shareholders. This being done, at a nominal charge, by submitting a stock transfer form for stamping with the Revenue Commissioners. Allotted shares are literally those shares that the permanent board of directors has decided to issue over and above those initially issued by the company registration agent. They are referred to as allotted because they are being issued for the first time and therefore are not being transferred from one party to another.
THE VALUE OF SHARES
The term "nominal" value is used for a company's shares since the true value will depend on how much a third party or even an existing shareholder is willing to pay for shares in the company at any given point in time. Thus, the value of a company's shares will depend on market forces in exactly the same way as witnessed with the stock market. It is therefore possible that someone could pay 1 cent for a share with a nominal value of €1.00 or €100.00 depending on a company's viability. Nevertheless, it must be remembered that all shares with a particular nominal value must have had at least the nominal value paid into the company coffers that nominal sum no matter which way the value may end up. If required, an individual/company may partly pay for their share issue but this is done simply to allow for flexibility, eventually the full amount must be paid up within a certain period of generally no more than 5 years or as laid down in the company's Memorandum & Articles of Association (see below).
THE TYPE OF SHARES
In general there are two types of shares "ordinary" and "preference". Preference shares as the name suggests provide a benefit over and above those available to those holding ordinary shares. In most cases, the preference will relate to either voting rights and/or payment of company dividends depending on the provisions of the Articles of Association.
MEMORANDUM & ARTICLES OF ASSOCIATIONS
The Memorandum of Association of a company aims to set out what the company may do which traditionally was very extensive to allow for future flexibility. However, with the recent introduction of NACE Codes it now seems that the Revenue Commissioners are indirectly compromising the automatic flexibility hitherto enjoyed by Irish companies. The Articles of Association literally lay down how a company is to be governed normally by choosing a standard set of Articles provided within the Companies Acts' 1963-2001 with appropriate amendments/alterations. Most Irish private limited companies are governed by Table "A" Articles there being a choice between "A-F".
ANNUAL & EXTRAORDIONARY
These are meetings held by the shareholders to either review the performance of the board of directors (if different from themselves) or assist them take major decisions. In simple terms, all companies have Annual General Meetings (AGM's) to review such things as a company's annual accounts and related matters. Extraordinary General Meetings (EGM's) as the name suggests, can be called at any time of the year when there is a matter of sufficient gravity. It should be remembered that at all times the ultimate control will vest in the shareholders but unless they/it is/are the same as the directors day to day executive decisions remain the domain of the board of directors.
SPECIAL AND ORDINARY RESOLUTIONS
As stated above, all companies are bound by their Memorandum and Articles of Association. However, where it is deemed desirable changes can be made and/or meetings called by the shareholder(s) provided the applicable majority exists. In the case, of "ordinary" resolutions, which generally deal with day to day and/or matters of lesser importance, a simple majority is all that is normally required. In the case of "special" resolutions, which tend to deal with structural and matters of greater importance, majorities of either two thirds or three quarters are the norm depending on the particular Memorandum and Articles of Association used.
THE REGISTERED OFFICE ADDRESS – ROA
This is the address where a company is officially located and where all service of process/official documents arrive. It does not have to be the address where the business is actually carried out and in is fact very often the address of a company's solicitor/accountant or company registration agent. Who provides your registered office address is very important since they will receive all documents from both the Revenue Commissioners and the Companies Registration Office (CRO) and should be capable of advising and or dealing with such official correspondence. In addition, a copy of a company's official books must always be kept at the ROA for the benefit of both shareholders and other interested parties. Finally, the ROA is where all documents relating to a legal action should first be submitted.
Accounts must be prepared and laid before the members. Accounts together with an auditors certificate have to be filed in the Companies Office, and are available for public inspection. The level of information given in filed accounts varies with the size of the company and are prepared as “Small”, “Medium”, or “Large”.
If a company meets certain conditions, such as having a turnover of less than €318,000 (approx) per annum, a balance sheet total of less than €1.9m (approx), employs less than 50 people and is not otherwise prohibited, it may be exempted from having it's accounts audited. The company must still file it's accounts with the CRO.
POWERS OF ATTORNEY
Powers of attorney are documents granted by the board of directors in favour of third parties, known as attorneys-in-fact, in order to allow them to carry out functions deemed desirable by the board of directors. In general terms there are two main types of attorney, a General Power of Attorney (GP0A) and a Special Power of Attorney (SPOA). The first can give a wide range of powers to an attorney-in-fact whilst the second, tends to be very specific and time delimited. When looking at any POA it must always be remembered that no matter what terminology may be used in the document (i.e. such as irrevocable) all POA's General or Specific can be cancelled/abrogated at any point in time by the grantors, the board of directors.
ANNUAL RETURN AND ANNUAL RETURN DATE
An Annual Return gives details of authorised and issued share capital, members, directors and secretary and must be filed with the Companies Registration Office (C.R.O.) along with the company's accounts.
The first annual return is made up to a date six months after the date of incorporation, and must be filed within twenty eight days of this date in order to avoid being “late”. If this deadline is missed the company incurs an automatic €100 penalty PLUS a further penalty of €3 per day . Accounts do not have to be attached to this first annual return.
The next annual return is made up to a date twelve months after the date of the first annual return.- effectively eighteen months from the date of incorporation. The anniversary of this date becomes the company's “Annual Return Date” (A.R.D.)
The significance of the A.R.D. is that the company only has twenty eight days after the A.R.D. within which to file it's annual return and accounts with the C.R.O. before the return is considered late. As with the first annual return the penalty for late filing is an automatic €100 plus €3 for every day thereafter.
There is a facility for a company to alter it's A.R.D., but this can only be done once in every five years.
Important Note: If a Company fails to file it's Annual Return (and Accounts) for just one year the CRO may have the Company “struck off”. This means that the Company ceases to exist and any assets which it may own, technically, become the property of the State. Having a company restored can be a timely and expensive exercise.
The C.R.O. also have the option to prosecute a Company and/or it's Directors for non-filing or late filing. Cases are heard in the District Court and fines can be up to a maximum of €1,900 per summons. (More than one Director can be prosecuted)
Accordingly it is imperative that a company ensures that it's obligations to the C.R.O. are met on a timely and consistent basis. EUROFINANZZA offer assistance in this regard through our Company Secretarial Maintenance Program – ask for details.
WHY REGISTER AN IRISH COMPANY?
GENERAL ADVANTAGES OF AN IRISH LIMITED LIABILITY COMPANY
The decision to purchase a company and take on the responsibilities of being a director and/or secretary will probably be one of the most important of your business life. Before preceding all clients should be aware of the advantages and disadvantages of a limited company compared to either a sole proprietorship or partnership. Generally in running a company there is a little more bureaucracy but this is generally more than compensated by the protection afforded to personal assets. In addition, in Ireland corporate tax levels and payment periods, especially for small companies, are often more favourable than those enjoyed by individuals particularly given the fact that the Government has undertaken to reduce corporate tax levels to only 12.5% by 2003 . If and when the decision is made to proceed with a domestic company EUROFINANZZA can offer a full range of professional services at very competitive rates both for members of the general and professional communities.
For further information on any of these subjects or if you have any comments please do not hesitate to contact us.
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