Reporting by Liquidators to the Director of Corporate Enforcement

Transcription

1 STATEMENT OF INSOLVENCY PRACTICE S18B Reporting by Liquidators to the Director of Corporate Enforcement Contents Paragraphs Introduction 1 6 Commencement 7 9 Scope Duty to report Content of Report Application to the Court Effective date 38 Appendices 1. Section 56 report format 2. Questionnaire for directors of the insolvent company 3. Practice direction on procedures to be followed in making an application for restriction of a director Revised February 2005

2 STATEMENT OF INSOLVENCY PRACTICE S18B Reporting by Liquidators to the Director of Corporate Enforcement This Statement was developed by the Insolvency Committee IC of the Consultative Committee of Accountancy Bodies Ireland ( CCAB-I ) in consultation with the Director of Corporate Enforcement. Introduction 1. This Statement of Insolvency Practice is one of a series issued by the Institute of Certified Public Accountants in Ireland to insolvency practitioners with a view to maintaining standards by setting out required practice and harmonising members approach to particular aspects of insolvency. 2. The purpose of Statements of Insolvency Practice is to set out basic principles and essential procedures with which insolvency practitioners are required to comply. Departure from the standards set out in the Statements of Insolvency Practice is a matter that may be considered by the Institute for the purposes of possible disciplinary or regulatory action. 3. This Statement has been prepared to summarise the statutory obligation on liquidators to report to the Director of Corporate Enforcement ( the Director ) concerning directors of insolvent companies. 4. Section 56, Company Law Enforcement Act, 2001 ( the 2001 Act ) states: (1) A liquidator of an insolvent company shall, within 6 months after his or her appointment or the commencement of this section, whichever is the later, and at intervals as required by the Director thereafter, provide to the Director a report in the prescribed form. (2) A liquidator of an insolvent company shall, not earlier than 3 months nor later than 5 months (or such later time as the court may allow and advises the Director) after the date on which he or she has provided to the Director a report under subsection (1), apply to the court for the restriction under section 150 of the Act of 1990 of each of the directors of the company, unless the Director has relieved the liquidator of the obligation to make such an application. (3) A liquidator who fails to comply with subsection (1) or (2) is guilty of an offence.

3 5. The Director has issued Decision Notice 2002/3 regarding various aspects of the reporting obligation under Section 56. This notice can be accessed on his Office s website at Copies of Decision Notice 2002/3 were circulated to each practitioner with incomplete liquidations as of November Liquidators may consider it appropriate to obtain legal advice as to the nature and extent of information to be provided in the circumstances of a particular liquidation. The report by the liquidator could, in particular circumstances, be a discoverable document where legal proceedings are being brought against a director of an insolvent company. Commencement 7. Section 56 of the 2001 Act was brought into force on 1st June 2002 under Statutory Instrument 263 of Section 56 applies to liquidators appointed on or after 1st June 2002, as well as to liquidators appointed after 1st July 2001, where the relevant liquidation has not concluded by 1st June Statutory Instrument 217 of 2003, which took effect on 1st June 2003, extended the scope of Section 56 to liquidators appointed on or after 1st January 2000 where the relevant liquidation had not concluded by 1st June Scope 10. The reporting obligation applies to liquidators appointed in Court liquidations or in creditors voluntary liquidations. 11. In the circumstances of a members voluntary liquidation where the liquidator forms the opinion the company will not be able to pay its liabilities in full, the obligation to file a Section 56 report applies. In such circumstances, legal advice received by the CCAB-I is that the Section 56 report must be made within six months of the date of the Section 261 meeting. 12. The reporting obligation does not apply to liquidations completed prior to 1st June Completion in a court liquidation is when final orders have been made for dissolution of the company and for disposal of the company s books and records (Section 249 (1), Companies Act, 1963). In the case of a creditors voluntary liquidation completion is when final meetings in accordance with Section 273, Companies Act, 1963, have been held. Duty to Report

4 13. Section 56 obliges the liquidator of an insolvent company within 6 months after his or her appointment or the commencement of this section, whichever is the later to provide the Director, on the prescribed form, with a report on each director of the insolvent company. 14. A report is required on each director regardless of the extent to which he or she was involved in the day-to-day activities of the company. 15. The reporting obligation under Section 56 applies even in circumstances where the liquidator has already made application to the Court seeking restriction of one or more directors under Section 150, Companies Act, 1990 ( the 1990 Act ). Content of Report 16. As provided for under Section 56, the Minister has specified a prescribed report format in the Company Law Enforcement Act 2001 (Section 56) Regulations 2002 S.I. 324 of The report format is reproduced in Appendix The stage of the liquidator s examination of the insolvent company s affairs, as of the date the Section 56 report is being made, may mean that the liquidator will indicate his/her response to certain questions in the report format is based on the position as at the date of the report. 18. In completing the Section 56 report, the liquidator will, in respect of certain information for example, copies of previous years audited accounts, details of other directorships held, etc., be relying on documentation and information available at the insolvent company and from its directors. In such circumstances, the source of the data relied upon should be stated. 19. The liquidator is not expected to verify this data obtained at the insolvent company with information at the Companies Registration Office or other source. Where such data is not available at the company, the liquidator is not required to seek it from third parties. 20. The liquidator may find it useful to invite each director of the insolvent company to provide the liquidator with a written summary of their involvement in the company s activities, particularly the actions taken by them to identify and address the financial difficulties which led to the company s insolvency. An example of questionnaire formats, one of which each director could be invited to complete, the other being completed by one director on behalf of all the directors, are reproduced in Appendix The liquidator considers whether it may be appropriate for the liquidator to write to the directors of the insolvent company, in circumstances where the liquidator proposes not to seek relief under Section 56, advising them of that fact, informing them of the

5 principal grounds for the decision, and offering them an opportunity to comment, within a specified time period, prior to the Section 56 report actually being made. The comment period will end on a date sufficiently early to enable the Section 56 report if still being made to be submitted within the statutory deadline. 22. Documentation arising from such consultation can, if necessary, be provided to this Court in cases where the liquidator decides not to seek relief, or, where the liquidator has sought relief, but the Director has insisted that a Section 150 application be made. 23. The Director has confirmed that the liquidator s statement (Section 7 of the report), that details are true, correct and complete, to the best of my knowledge and belief, does not extend to documentation which originated with third parties for example, the Statement of Affairs prepared by the directors. 24. If the liquidator considers that he or she has insufficient time to complete the Section 56 report within the prescribed six months period, or the liquidation investigations are incomplete, he or she considers seeking additional time from the Office of the Director of Corporate Enforcement in order to complete the report`. 25. Members attention is drawn to Section 5: Proceedings of the prescribed report format which, in addition to referring to Section 150, enquires as to whether: (i) Actions are being taken under Section 160, Companies Act, 1990; or (ii) Other proceedings are being taken, or are contemplated, by the liquidator against one or more of the officers of the insolvent company; or (iii) Other civil or criminal proceedings are being taken, or are contemplated, by third parties against the insolvent company or its officers; or (iv) A report will be made under Section 299, Companies Act, Application to the Court 26. The liquidator is obliged to make a Section 56 report and, unless relieved by the Director, make an application to the Court for restriction of each of the company s directors whether or not there are sufficient assets in the liquidation to fund such application. The Director must be included as a notice party in all such applications. 27. Unless advised to the contrary by the Director, no earlier than three months, and no later than five months (or such later time as the Court may allow), after the date on which the liquidator of an insolvent company has made the required report to the Director, the liquidator must apply to the Court for a restriction order in respect of each director of the insolvent company under Section 150 of the 1990 Act.

6 28. The Office of the Director of Corporate Enforcement proposes to advise the liquidator in each case whether he or she has been relieved (in whole or in part) from the obligation to make an application to the Court within four months of receipt of the Section 56 report. 29. Nevertheless, should the liquidator receive no response from the Director to the Section 56 report, an application to the Court for a restriction order must be made. 30. Unless relieved by the Director, the liquidator must make application to the Court even if the liquidator in the Section 56 report has expressed the opinion the director of the insolvent company has demonstrated that he or she acted honestly and responsibly in relation to the company s affairs. 31. In the Decision Notice 2002/3 the Director sets out the following circumstances in which it is unlikely a liquidator will be relieved from the obligation to make an application. there has been a suspected breach of the Companies Acts, 1963 to 2001, by a director, including any failure to keep proper books of account; a director has placed his or her personal interests ahead of that of the company, including a situation where liabilities to a bank to which he or she has given personal guarantees are discharged prior to liquidation; a director has purchased company assets below market values, particularly if the company s financial position was fragile at the time; there has been misapplication or retention by a director of company money or property; a company has continued trading while the company was insolvent and the director knew or ought to have known that the company was insolvent; a company has continued trading without reasonable prospect of paying creditors claims, especially where a company accepts consumer prepayments/deposits while insolvent; there has been a selective discharge of company debts by the company in the period prior to liquidation and a consequent failure to discharge debts due to State Authorities; there has been evidence of past Phoenix Syndrome practices (e.g., where significant assets were acquired from an earlier failed company in a similar business sector near the time of the previous failure having taken place);

7 there is evidence of suspected future Phoenix Syndrome practices, such as unexplained disposals of assets or transfers of staff to another company, particularly if such a disposal/transfer occurred in the twelve months prior to the commencement of the liquidation; there is evidence of an undervaluing or overvaluing of transactions; a company director has failed to co-operate with, or has refused to give reasonable assistance, to the liquidator. 32. The President of the High Court issued a Practice Direction on Monday, 24th March 2003, effective from that date, specifying the applicable procedures to be followed when making an application to the Court for a restriction order under Section 150, Companies Act, The text of the Practice Direction is reproduced in Appendix The affidavit supporting the application for a restriction order must set out all the facts which the liquidator considers the Court should be apprised of to determine (i) whether each of the respondents has acted honestly in relation to the conduct of the affairs of the company (ii) whether each of the respondents has acted responsibly in relation to the conduct of the affairs of the company. (iii) whether there is any other reason for which it would be just and equitable to restrict any of the respondents. (iv) apply if appropriate whether any of the circumstances set out in s. 150(2)(b) 35. Applications in respect of several directors of one company shall be made on one Notice of Motion except where the circumstances otherwise require. 36. The issue of legal costs and liquidator s costs arising from a Section 150 application is a matter for the Court. Insolvency practitioners should be aware that in the event of the director being restricted following such application, costs could be awarded in the liquidator s favour at a level which may be insufficient to discharge the actual costs incurred. Where significant time and expense has been incurred in investigating the company s affairs because of the lack of cooperation from the directors and/or the provision by them of misleading information to the liquidator, the liquidator considers applying for the costs of the investigation. 37. In certain circumstances for example, where the liquidator sought relief from the obligation to make a Section 150 application, but the Office of the Director of

8 Corporate Enforcement did not grant this waiver, or where the Court decides that the director should not be restricted, costs could be awarded against the liquidator. Legal advice should be obtained in advance of an application to the Court concerning the legal and investigation costs arising in relation to this process. EFFECTIVE DATE 38. This Statement is effective from 1st May 2005.

9 STATEMENT OF INSOLVENCY PRACTICE S18B Reporting by Liquidators to the Director of Corporate Enforcement Appendix 1 Liquidator s Report under Section 56 of The Company Law Enforcement Act 2001 (Please refer to the Guidance Notes when completing this Report. These are available from the ODCE website at Name of Company: Registration Number: Please indicate if this is the first, second, etc. or final Report filed for the above company: Section 1: LIQUIDATOR DETAILS (Question 1 to be completed in every Report. Questions 2 to 9 to be completed as part of the first Report and in every subsequent Report where a change in details arises.) 1. Name of Liquidator: 2. Name of Liquidator s firm (if applicable): 3. Address of Liquidator: 4. If you are a member of a professional body, please state which one: 5. Liquidation Type (please tick one): Creditors Voluntary Liquidation: Official Liquidation: 6. If a Creditors Voluntary Liquidation, were you the members nominee? Yes: No:

10 7. Date of your appointment as Liquidator: 8. Name of Liquidator s staff member with day-to-day responsibility for the Liquidation (where applicable): 9. Contact Details for (please tick one): The Liquidator: Staff Member: Telephone Number(s): Fax Number Address: Section 2: COMPANY DETAILS (To be completed as part of the first Report and every subsequent Report where a change in details arises) 10. Business/Trading Name(s) (please include all those used in the 12 months prior to the date of commencement of the winding up): 11. Address of Current Registered Office:

11 12. Address of any other Registered Office used in the 12 months prior to the date of commencement of the winding up: 13. Principal Trading Address(es) (please include all those used in the 12 months prior to the date of commencement of the winding up, if different from the Registered Office(s) above): 14. Nature of the Company s Business: a. Please state the most relevant NACE Classification at the date of commencement of the liquidation (see Guidance Notes): b. Please give a precise description of the Company s activities at the date of commencement of the liquidation:

12 15. Number of Company employees at the date of commencement of the liquidation: 16. Turnover for each of the last three financial years preceding the date of commencement of the liquidation: Financial Year Ended (date): Turnover: (Euro) Financial Year Ended (date): Turnover: (Euro) Financial Year Ended (date): Turnover: (Euro) 17. Trading Details (please state as a minimum month and year): a. Date of Commencement of Trading: b. Date of Cessation of Trading (if applicable): 18. Please state, in your opinion, the reasons for the liquidation of the Company, and cite the evidence to support this opinion on a separate sheet. 19. Has there been any Scheme of Arrangement/Receivership/ Examinership/Liquidation in the Company in the 36 months prior to the date of this report? Yes: No: If yes, please provide relevant information, including type, name and address of any office-holder(s), date(s) of appointment/termination of appointment, copies of all notices of appointment and reports of receivers/examiners/liquidators or other office holders of the Company during the period.

13 20. Is there a deficiency in any tax return or payment of taxes? Yes: No: If so, please specify the periods, if any, for which returns are overdue and/or the amounts due 21. Have you any information which may lead you to believe that there was a person acting as a shadow director of the Company? (Please note that the expression shadow director may include an individual or a body corporate): Yes: No: If yes, please provide the following details for the individual/body corporate in question: a. Full Name: b. Current or last known address: c. What was the person s role in the Company? d. Has the person demonstrated to you that s/he has acted honestly and responsibly in relation to the conduct of the Company s affairs? Yes: No:

14 Please provide on a separate sheet details of the factors which support this answer and any other relevant information. Section 3: COMPANY DIRECTORS (To be completed as part of the first Report and every subsequent Report where a change in details arises) 22. In this Section, you are required to include every person who appears to you to be, or have been, a director of the Company at the date of commencement of the winding up or at any time in the 12 months prior to the date of commencement of the winding up. A separate copy of this Section should be used for each Person. a. Full name (including other known names): b. Current or last known address: c. Date of birth: d. PPS number: e. Period as director: From (date): To (date): f. What was the person s role in the Company?

15 g. Has the person demonstrated to you that s/he has acted honestly and responsibly in relation to the conduct of the Company s affairs? Yes: No: Please provide on a separate sheet details of the factors which support this answer. h. Other Directorships (please provide full details of present/past companies of which this Person is/was, a Director in the period from 12 months prior to the date of commencement of the winding up of the Company and include the company registration number, the date(s) of appointment/termination of the period as Director in each case and please indicate if any of these companies operated in a sector similar to the Company in liquidation): Section 4: STATEMENT OF AFFAIRS, ACCOUNTS AND REPORT TO CREDITORS (To be completed as part of the first Report and every subsequent Report where a change in details arises) 23. Directors Statement of Affairs or similar document (please attach a copy to this Report. If a copy is not attached, please state why not and attach details of the known assets and liabilities of the Company):

16 24. Is there a material difference between the Statement of Affairs or similar document and the expected final position? Yes: No: If so, please provide details of the amount and the reason for this material difference on a separate sheet. 25. Audited/Other Accounts (please attach to this Report a copy of the last two sets of the audited accounts at the Company and the most recent draft or management accounts prepared after the last set of audited accounts. If the Company is exempted from audit, please provide a copy of the accounts laid before the AGM for the same period and the most recent draft or management accounts. If none are attached, please state why not.): 26. Report to Creditors and any other relevant material, e.g., minutes of creditors meeting and Chairperson s statement to meeting (please attach these documents and if they are not available. state why not): 27. Has a Committee of Inspection been appointed? Yes: No:

17 If so, please provide the names and addresses of the members: 28. Will the winding up be completed within 18 months from the date of this report? Yes: No: 29. Was there any material transfer of assets of the Company (see Guidance Notes) to any person during the period commencing 12 months prior to the date of commencement of its winding up and ending on the date of this report? Yes: No: If yes, please provide details, e.g., date(s) of transfer, nature of asset(s), beneficiary(ies), on a separate sheet. 30. On what date was the Company unable to trade out of its financial difficulties? Section 5: PROCEEDINGS (To be completed as part of the first Report and every subsequent Report where a change in details arises) 31. Are you asking the Director of Corporate Enforcement at this time to relieve you from the requirement to apply, pursuant to Section 150 of the Companies Act 1990, for the restriction of one or more of the directors of the Company? Yes: No:

18 If yes, is relief being sought for? (please tick one) All directors: Certain named directors: In either case, please name each director for which relief is sought and state the grounds upon which you consider that an application for restriction should not now be taken against each individual. In respect of any remaining directors, please name them and indicate the grounds upon which the application for restriction will be made in each case: 32. In respect of this Company will you be applying to the High Court to disqualify any person, pursuant to Section 160 of the Companies Act 1990? Yes: No:

19 If yes, please name the person(s) in question and indicate the grounds upon which the application to disqualify will be taken: 33. Are any other proceedings being undertaken, or contemplated, by you against officers of the Company? Yes: No: If yes, please specify the nature of the proceedings, the person(s) against whom the proceedings are being or may be taken and the date/expected date of commencement of the proceedings. If proceedings have commenced please state whether they are in the High Court or Circuit Court and cite the Court record number of the case: 34. Are any other civil or criminal proceedings being undertaken, or contemplated, by any other person against the Company or any of its officers? Yes: No: If yes, please specify the nature of the proceedings, the person(s) against whom the proceedings are being or may be taken, the date/expected date of commencement of the proceedings and the name, address and telephone number of the person taking or contemplating the proceedings. If proceedings have commenced, please state whether they are in the High Court or Circuit Court and cite the Court record number of the case:

20 35. Have you made, or are you contemplating making, a report to the Director of Public Prosecutions and the Director of Corporate Enforcement under Section 299 of the Companies Act 1963 (as amended by Section 51 of the Company Law Enforcement Act 2001)? Yes: No: If yes, please specify the nature of any suspected offence(s), the person(s) to whom the report relates, the relationship of each such person to the Company and the date/expected date of submission of the report:

21 Section 6: FINAL REPORT 36. Outcome of restriction application(s) to the High Court (if applicable) (please provide details for each person): 37. Outcome of any other court proceedings taken under the circumstances set out in questions 32, 33 and 34: 38. If the liquidation has been completed, please attach a copy of Form 14 as required to be submitted to the Companies Registration Office.

22 Section 7: Liquidators Statement (To be completed on every occasion a report is made) I, being the liquidator of the above company, state that the details and particulars contained in this Report and all associated documentation prepared by me are true correct and complete, to the best of my knowledge and belief. Signed: Date: Please ensure that copies of the following are attached to this Report: Separate sheets (if applicable) [items 18, 22(g), 24, 29]; Copies of notices of appointment and reports of receivers/examiners/liquidators/other office-holders (if applicable) [item 19]; Statement of Affairs (or details of assets and liabilities) [item 23]; Last two sets of audited accounts and draft or management accounts subsequently prepared, if any [item 25]; Report to Creditors and other relevant material, including minutes of creditors meeting, Chairperson s statement to meeting [item 26]; Additional copies of Section 3: Details of Company Directors; Copy of CRO Form 14 (if applicable) [item 38]; Any further information or documentation that you deem to be required.

23 Appendix 2A STATEMENT MADE BY DIRECTOR, TO THE LIQUIDATOR OR HIS REPRESENTATIVE To be completed by one director on behalf of all directors NAME OF COMPANY REGISTERED OFFICE ADDRESS OF PLACE OF BUSINESS NATURE OF BUSINESS TELEPHONE NUMBER OF COMPANY NAME AND ADDRESS OF AUDITORS OF THE COMPANY: NAME AND ADDRESS OF THE SECRETARY OF THE COMPANY:

24 PLACE WHERE MEMORANDUM AND ARTICLES OF ASSOCIATION, MINUTE BOOKS, REGISTER OF MEMBERS, REGISTER OF DIRECTORS, ETC., ARE KEPT: SHARE CAPITAL OF COMPANY: Authorised: Issued: DATE OF INCORPORATION OF COMPANY AMOUNT, IF ANY, DUE ON SHARES IF NOT PAID UP IN FULL: PLEASE STATE THE LOCATION OF THE COMPANY SEAL: NAME AND ADDRESS OF COMPANY SOLICITORS: REPORTING PERIOD OF MOST RECENT SET OF AUDITED ACCOUNTS:

25 PERSON/S RESPONSIBLE FOR PREPARATION OF STATEMENT OF AFFAIRS: NAMES AND ADDRESSES OF KEYHOLDERS: ETAILS OF ALL INVESTMENTS OF THE COMPANY DETAILS OF ANY ASSETS OF THE COMPANY HELD BY THIRD PARTIES:

26 DETAILS OF ALL BANK ACCOUNTS OPERATED, OPENED, OR CLOSED BY THE COMPANY WITHIN TWO YEARS OF THE DATE OF APPOINTMENT OF THE LIQUIDATOR DETAILS OF ANY ASSETS OF THE COMPANY HELD BY THE DIRECTORS: DETAILS OF ALL PERSONS HOLDING THE POSITION OF DIRECTOR WITHIN TWO YEARS OF THE DATE OF THE ONSET OF THE INSOLVENCY: SURNAME: FORMER SURNAME: FULL FORENAMES: POSTAL ADDRESS:

27 BOOKS AND RECORDS OF THE COMPANY: Schedule below all books and records which constitute the full records maintained by the Directors of the Company up to the date of appointment of the liquidator. If the records are not on the company s premises then their location must be identified: LEGAL ACTION: Briefly identify below any pending legal action which should be brought to the notice of the liquidator DISPOSAL OF ASSETS: Detail below any assets which have been disposed of by the company other than in the ordinary course of business during the preceding year, giving nature of the asset and the date that the disposal took place: IMMOVABLE PROPERTY: Detail below the location of the Title Deeds of any immovable property which is owned by the company:

28 SECURITIES: Detail below the existence and location of any securities which have been given to creditors at any time, including mortgage bonds, and hire purchase agreements. If applicable make reference to any creditor who may be in possession of any assets belonging to the company as security for his claims against the company: INSURANCE: Are the assets of the company currently insured against fire and theft, and if so, give full details of the name of the insurance company and the cover arranged: GENERAL INFORMATION: Detail below any further information which you consider should be brought to the attention of the liquidator: I the undersigned, Director of now in liquidation, do hereby declare that the attached questionnaire has been completed by me voluntarily. The information contained in this statement is, to the best of my knowledge and belief, true and correct. I further declare that I have not withheld any information concerning assets, liabilities, or accounts of the company. The schedule of books and records, as contained in this statement, is complete and constitutes the entire records of all the company s business transactions as maintained by the company.

29 NAME OF DIRECTOR: SIGNATURE: DATE:

30 Appendix 2B STATEMENT MADE BY DIRECTOR, TO THE LIQUIDATOR OR HIS REPRESENTATIVE Separate statement to be completed by each director SURNAME FULL FORENAME POSTAL ADDRESS RESIDENTIAL ADDRESS: NATIONALITY: DATE OF BIRTH: OCCUPATION: DATE OF APPOINTMENT: DATE OF RESIGNATION: Do you have any formal contracts or agreements with the company? Yes/No If yes, please attach a copy of the said contract/agreement