Companies (Accounting) Act 2017 commences

Creation of a new class of “Micro company” and changes to small and medium companies

The 2017 Act introduces a new class of “micro” company and increases the thresholds for small and medium companies as set out in the table below:

To qualify in the relevant class, a company must meet two of the three thresholds.

For financial years commencing after 1 January 2017, medium sized companies will no longer be able to file abridged financial statements, instead they must file full financial statements. Small companies and micro companies may file abridged financial statements. Micro and small sized companies will be exempt from certain disclosures in their financial statements with more extensive disclosure exemptions for micro companies, including an exemption from disclosing details of directors' remuneration.

The following types of companies cannot qualify as micro companies:

• an investment company
• a financial holding undertaking
• a holding company that prepares group financial statements or
• a subsidiary that is included in the consolidated financial statements of a higher holding undertaking

‘Non-filing structures’ & Unlimited Companies (ULC)

Prior to the commencement of the 2017 Act, certain ULCs were not required to file financial statements in the CRO.  This applied to ULCs with at least one member who is either an individual or an unlimited company or partnership formed in a non-EEA country.  The exemption from filing financial statements applied even where the top company in the structure was a limited company – thus providing the security of limited liability for the shareholders of the top company, without the requirement to file financial statements.  This was known as a non-filing structure.  All other unlimited companies (defined as designated ULC’s) were required to file financial statements.  The 2017 Act provides for a revised and expanded definition of designated ULC, designed to eliminate most existing non-filing structures.  This change is driven by the Directive which provides that companies should not be able to avoid publishing financial statements by creating a multi-layered group structure.  The amendment means that most ULCs will now be required to file financial statements with their annual returns.

The 2017 Act also introduces the requirement for ULCs with a limited liability subsidiary to file financial statements for financial years on or after 1 January 2022.

Unlimited Company name

Under the 2014 Act, the registered names of all ULCs were required to end in “unlimited company”, “UC”/ “U.C.” or the Irish language equivalents. The Minister for Jobs, Enterprise and Innovation had the power to exempt a company from ending its name with those words in special circumstances. The 2017 Act removes this power. However, any companies that were granted an exemption prior to 9 June 2017 will not be affected.

Branches of foreign companies

The only provision in the 2017 Act that has not yet commenced relates to branches of foreign companies.  Currently unlimited foreign companies are not required to (and cannot) register a branch in the State.   The 2017 Act contains a new expanded definition of “EEA company” and “non-EEA company” the effect of which is to require an unlimited foreign entity which is a subsidiary of a limited liability body corporate, to register as a branch if it is operating in Ireland.  Foreign companies with a registered branch in Ireland are are required to file annual accounts in the CRO as well as certain other information and documents.

2014 Act anomalies fixed

The 2017 Act also seeks to fix some of the anomalies identified in the 2014 Act since its commencement just over two years ago.  These include:

• Restrictions on LTDs having debt securities admitted to trading or listed only apply to securities issued post-1 June 2015.
• Mergers relief facilitated by section 72 of the 2014 Act is now available on acquisition of all bodies corporate (previously this was just available on acquisition of Irish companies).
• Definition of “credit institution” - the 2014 Act provides that a credit institution cannot be an LTD. The definition of the term credit institution was open to the interpretation that it included companies engaged in intra-group lending including group treasury companies. This definition has now been amended to clarify that it relates to commercial lending and reads “a company or undertaking engaged in the business of accepting deposits or other repayable funds from the public and granting credit for its own account”.

Conclusion

Many companies will be impacted by the provisions of the 2017 Act, in particular in relation to the preparation and filing of accounts. Business should review their corporate structures to ensure they comply with the expanded filing requirements.