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COMPANY FORMATION IN THE
REPUBLIC OF IRELAND

CORPORATE FEATURES

General

Type of Company :

Resident Private Limited

Type of Law:

Common

Shelf Company Availability:

No

Our time to establish a new company:

10 days

Migration of Domicile Permitted:

No

Corporate taxation:

12.5% on profits

Double taxation treaty access :

Yes

Language of name:

Latin Alphabet

Corporate Requirements

Minimum Number of Shareholders/Members:

1, normally 2

Minimum Number of Directors/Managers:

2

Corporate Directors:

No

Company Secretary required:

Yes

Minimum Paid Up:

Euro 1

Usual authorised Capital:

Euro 1,000,000

Local Requirements

Registered Office/Agent :

Yes

Company Secretary:

No

Local Directors:

Yes (See below)

Local Meetings:

No

Government Register of Directors/Managers :

Yes

Government Register of Shareholders/Members:

Yes

Annual Requirements

Annual Return:

Yes

Annual Return Filing Fee:

Euro 40

Accounts

Requirement to prepare:

Yes

Audit Requirement :

Yes, but small company exemption

Requirement to file accounts :

Yes

Publicly accessible accounts :

Yes

GENERAL INFORMATION
Ireland is situated to the west of Great Britain from which it is separated by the Irish Sea. Ireland is 83,270 square kilometres in size.

POPULATION
The population of the whole of Ireland is approximately 5 million of which 3 million live in the Republic. Roughly one-third of the population live in Dublin and its surrounding suburbs.

POLITICAL STRUCTURE
In 1949 Ireland became a Republic and left the British Commonwealth. Northern Ireland remains an integral part of the United Kingdom.

The Republic of Ireland is a parliamentary democracy with a written constitution. The President is the Head of State elected for a maximum of two terms of seven years. The Parliament is known as the Oireachtas and consists of two houses, a Lower House and the Senate. The lower house called Dail Eireann has 166 members. They are elected in multi-seat constituencies by the single transferable vote system of proportional representation. The members of Dail elect a Taoiseach (Prime Minister) who nominates 15 Government Ministers to the President, who then appoints them on his advice.

The Senate is known as Seanad Eireann. This is an upper house, which functions in a similar manner to the House of Lords in the United Kingdom. Its members are all elected by vocational panels such as farming’s, employers, trade unions and educational and commercials.

The Republic of Ireland is a full member of the European Union. Accordingly, Irish citizens have the automatic right to live and work in any member state of the Union.

INFRASTRUCTURE AND ECONOMY
Dublin Airport is an important European Airport.

The economy is small and trade dependent. Agriculture, once the most important sector, is now dwarfed by industry, which accounts for 37% of GDP, about 80% of exports, and employs 28% of the labour force. To ease unemployment, Dublin aggressively courts foreign investors and recently created a new industrial development agency to aid small indigenous firms.

 



LANGUAGE
The English language is the official business and commercial language. However, there are many areas referred to as "An Gaeltacht" such as the Aran Islands, Connemara, Galway and Cork where Irish Gaelic is spoken.

CURRENCY
Euro €.

EXCHANGE CONTROL
None.

TYPE OF LAW
Common Law based on English Common Law.

PRINCIPAL CORPORATE LEGISLATION
Companies Acts 1963 to 1990 as amended. In particular The Companies (Amendment) (No.2) Act 1999.

COMPANY INFORMATION
Type of Company for International Trade and Investment Private limited companies.

PROCEDURE TO INCORPORATE
Submission of Memorandum and Articles of Association, together with a Form A1 detailing the first directors, secretary and situation of the Registered Office. It is important to note that the Registry will only incorporate new companies that prove they intend to undertake some form of real business in Ireland.

RESTRICTIONS ON TRADING
Cannot solicit funds from or sell its shares to the public. Required to undertake some business within Ireland.

POWERS OF COMPANY
A Company incorporated in the Republic of Ireland has the same powers as a natural person.

LANGUAGE OF LEGISLATION AND CORPORATE DOCUMENTS
English.

REGISTERED OFFICE REQUIRED
Yes, must be maintained in the Republic of Ireland.

NAME APPROVAL REQUIRED
No.

SHELF COMPANIES AVAILABLE
No.

TIME SCALE TO INCORPORATE
10 working days.

NAME RESTRICTIONS
A name that is identical or similar to an existing name. A name that implies illegal activities. A name that implies state patronage.

LANGUAGE OF NAME
Can be in any language using the Latin alphabet. The Registrar may request an English translation if a foreign language name is used for a company name.

NAMES REQUIRING CONSENT OR A LICENCE
The following names or their derivatives: bank, building society, savings, insurance, assurance, reinsurance, fund management, asset management, co-operative, Chamber of Commerce, society, municipal, , holding, Irish or their foreign language equivalent.

SUFFIXES TO DENOTE LIMITED LIABILITY
Limited or Teoranta (Irish Gaelic for Limited) or the relevant abbreviations.

DISCLOSURE OF BENEFICIAL OWNERSHIP TO AUTHORITIES
No.

COMPLIANCE

AUTHORISED AND ISSUED SHARE CAPITAL
There is no capital duty payable on the authorised capital. There is a 1% capital duty payable on the issued share capital. There is no maximum authorised capital. The minimum issued capital is two shares of par value.

CLASSES OF SHARES PERMITTED
Registered shares, preference shares, redeemable shares and shares with or without voting rights.

BEARER SHARES PERMITTED
The concept of bearer shares does exist, but they are very rare because Central Bank consent is required before they can be issued, and such consent is likely to be refused. It is also believed that issuing bearer shares could affect a company's status as a private company.

TAXATION
Companies are subject to taxation and Ireland has anti-avoidance legislation in place.

DOUBLE TAXATION AGREEMENTS
Ireland has a very extensive network of double tax agreements. The treaty countries include: Australia, Austria, Belgium, Canada, Cyprus, Denmark, Finland, France, Germany, Italy, Japan, Korea, Luxembourg, Netherlands, New Zealand, Norway, Pakistan, Portugal, Russian Federation, South Africa, Spain, Sweden, Switzerland, USA, United Kingdom and Zambia.

LICENCE FEES
None.

FINANTIAL STATEMENTS REQUIRED
Audited accounts are filed with the annual return. Annual accounts must be filed with the tax authorities.

RESPONSABILITIES AND COMMON TERMS
DIRECTORS

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 the country (*).

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.

(*) Important Remark:

However this was changed when The Companies Amendment Act 2009 was signed into law on the 12th of July. Section 10 of the Act amends the requirement that at least one of the directors be resident in Ireland.

For this purpose the "State" has now been changed to "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.

That means that a company all of whose directors are resident in, say, Italy or the UK, will not require a 'Section 43 Bond' or a certificate of a "real and continuous link with one or more activities in the State" from the Revenue Commissioners.

While this changes the company law requirements, care must be taken that to ensure that a company's claim for the 12.5% rate of corporation tax is not compromised by the withdrawal of any current Irish Directors. Such a move should be discussed carefully with tax advisors.

SECRETARY
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.

SHAREHOLDER(S)/ - SUBSCRIBER(S)
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.

NOMINAL, ISSUED, TRANSFERRED AND ALLOTTED SHARE
CAPITAL

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).

TYPES 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 ASSOCIATION
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 AND EXTRAORDINARY GENERAL MEETINGS
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.

REGISTERED OFFICE ADDRESS
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 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 Registered Address for the benefit of both shareholders and other interested parties. The Registered Office Address is where all documents relating to a legal action should first be submitted.

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 Power of Attorney 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.

EXEMPTION FROM REQUIREMENT TO HAVE A RESIDENT IRISH DIRECTOR OR BOND BY VIRTUE OF HAVING A “REAL AND CONTINUOUS LINK TO ONE OR MORE ECONOMIC ACTIVITIES BEING CARRIED ON IN THE STATE

As you may be aware Section 43 of the Companies (Amendment) (No. 2) Act 1999 sets a requirement for all Irish registered companies to have a Director who is “resident” in the Republic of Ireland.

An alternative to having a resident Director is to have either a Bond (– details on this topic are available on a separate letter) or be able to prove that the applicant company has a “real and continuous link to one or more economic activities being carried on in the State”

It is the Revenue Commissioners who decide whether or not a company has such a link. As there is no statutory definition of what actually constitutes “a link” the Revenue judge each application on a case by case basis.

However they have indicated that they interpret this phrase as meaning that the applicant company must have some active participation in generating income in the State. So simply opening a deposit account, for example, would not be sufficient to prove a link. In the case of non trading holding companies, the Revenue will only grant a statement indicating that there is a link if subsidiaries of the holding companies have already been able to demonstrate that they have a link.

In order to apply to the Revenue Commissioners for a statement proving that a company has a link, we would require the following information:

1. Company's registered number
2. Company's tax number
3. Companys trading address in the state
4. Company's registered office
5. Confirmation that the company has been trading in the Republic of Ireland for at least twelve months together with any supporting documenation such as audited accounts, sales brochures etc.
6. A description of the nature and duration of the “link”

Once we have this information we will make application on behalf of the company.
Please note that as these applications can take four/five weeks to be processed, any sole resident Directors should not resign until the application has been finalised.

Once we receive a statement from the Revenue Commissioners we will then submit it to the Companies Registration Office along with the enclosed Form B67.

 

 

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