December can be a busy month but, at least, for the bulk of companies all the major filing deadlines are completed and we just have to stress about all those Christmas lunches and dinners to fit in before the Christmas holidays. Hopefully, you can take the time to sort out your desk and enjoy the year end winddown.

Christmas on a Monday does not seem right somehow but, it is lovely to see it arrive whatever day it lands on, although it is tough on turkeys!

KomSec Limited will be closed from 22.12.2023 to 03.01.2023.

HAVE A WONDERFUL CHRISTMAS AND NEW YEAR

The CRO are set to re-launch its requirements for PPS / VIF numbers to be included when filing various statutory forms such as changes to Director details, Annual Returns, etc on Sunday 11^th June 2023 (the original April launch date was postponed).

Take into account that if you file one of the statutory forms impacted by the issue such as an Annual Return without the PPS / VIF numbers now and then submit the signature page after 11.06.2023 the Annual Return will be rejected.

How to obtain PPS / VIF numbers

Following on from my previous blog all Directors of any company incorporated in the South of Ireland must provide his or her PPS / VIF number in order to file any of the following statutory forms in the Companies Registration Office (CRO).

1. Form A1 – company incorporation

2. Form B1 – annual return

3. Form B10 – change of Director and/or Company Secretary details

4. Form B69 – filed by a Director and/or Company Secretary noting resignation where company has failed to do so.

PPS number

A PPS number is provided to any individual tax resident in Ireland and can be found in a variety of places such as an individual’s:

• European Health Insurance Card

• Tax Assessment

• PAYE Notice of Tax Credits

The name attached to the PPS number and filed in the CRO must match exactly.

VIF number

A VIF number has to be requested by any individual that does not have a PPS number.

A VIF Form will have to be completed by the individual before a Notary Public when sworn outside of the South of Ireland. The correctly completed VIF Form is then filed with the CRO. Once filed the CRO will then issue the VIF number.

Potential roadblocks

So far three potential roadblocks have been identified by clients.

1. Disparity between PPS name and name filed in the CRO. KomSec is currently engaging with its clients to identify and remedy this roadblock.

2. Time involved in completing process to obtain VIF number involves a number of different elements but, at least the VIF Form can be sent to KomSec electronically as the original signed Form is not required.

3. Concerns on how long it may take Department of Social Protection to confirm details to the CRO. Only time will tell how this may impact on filing deadlines forAnnual Returns and if a delay could result in a company losing audit exemption.

Help!

Do not worry KomSec is here to help as we continue to:

• contact our clients to help them prepare and comply with this new provision;

• prepare and file statutory forms required to resolve any disparities that exist between PPS name and name filed in the CRO; and

• help clients to apply and obtain individual VIF number.

Directive 2019/2121 (Cross-border Mobility) became EU law on 31.01.2023 although Ireland has yet to transpose it into Irish law.

The Directive itself does not provide for transitional arrangements for Cross-Border Mergers commenced under the current Cross-border Merger Regulations (SI 157 of 2008) to complete under the current regime, following the 31.01.2023 transposition deadline.  

It is up to individual Member States to determine its own Regulations on how to manage the transition from 31.01.2023 to whenever those Regulations come into effect.

Ireland has proposed to provide two options for a company currently planning a Cross-Border Merger.

1. An Irish company currently planning to engage in a cross-border merger and seeking to rely on the current legislative regime can publish the common draft terms in advance of the new Regulations. The company will then have a six month period within which to hold its general meeting to approve draft terms and complete the transaction under the current regime. 

    

2. Companies may wait until the new Regulations are in place.

The Department of Enterprise, Trade and Employment is in the process of drafting the Regulations which will be introduced by way of Statutory Instrument.

The Corporate Enforcement Authority (established in July 2022) replaced the Office of Director of Corporate Enforcement (ODCE) which was no longer fit for purpose. With the creation of the CEA it would be easy to think same old, same old.

It seems to me that the CEA has seized the opportunity to morph into a much more dynamic, focused, and independent organisation which has hit the ground running. Personally, I think one of the most important developments for the CEA is its ability to control its own recruitment requirements so that it can source specialist staff capable of dealing with the intricacies of corporate crime.

White collar crime sounds quite bland but as far as I am concerned it is just as bad as any other crime. A corrupt director may not have physically knocked over an old lady to steal her handbag but stealing the old lady’s pension is worse.   I was never a great advocate of the “walk of shame” one saw for alleged corporate criminals in other jurisdictions but, have to admit I am beginning to think there is some merit in seeing the public arrest with HANDCUFFS of individuals accused of corporate crime.

According to the United Nations it is estimated that US$1 trillion is paid in bribes and US$2.6 trillion stolen through corruption. Combined these sums represent 5% of annual Global Gross Domestic Product.

This year the Irish Government gave one of the biggest Budgets in the history of the State with commentators saying it was made possible by income from Corporation Tax. Whatever one thinks of the Budget if Ireland does not maintain a reputation as a strong reputable country to do business in there will be no Corporation Tax to argue about. There are more than enough challenges for Irish companies dealing with the devasting war in Ukraine, energy costs, housing, climate, etc. Without a strong corporate reputation Ireland will no longer attract business and once a reputation is lost the way back is grindingly hard for everyone.

An effective CEA will be to the benefit of us all.

When a company or individual becomes aware of a discrepancy in beneficial ownership details filed with the Central Register of Beneficial Ownership (CRBO) there is an option to file a Discrepancy Report.

History of Discrepancy Notices filed in the CRBO

• In 2020 – just 2

• In 2021 – over 700

• In 2022 – over 600 

What is going on and why such an extraordinary surge?

It looks like the trigger event was the enactment of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 in 2021. This Act transposed EU Money Laundering Directive into Irish law thus bringing Ireland in line with current European AML and countering financing of terrorism (“AML/CFT”) framework.  

Companies are not allowed to be told who has filed the Discrepancy Notices so who is filing and why remains a matter of conjecture. It seems likely though Discrepancy Notices are being filed in a knee jerk reaction to the implementation of the Criminal Justice Act on the basis of “to be sure, to be sure”.

In the event you receive a warning email from the CRBO make sure you respond ASAP to ensure you remain within all relevant deadlines. Do not assume there is a discrepancy. Check the beneficial ownership details as in all likelihood your details are fine. Provided you engage proactively and in a timely manner with the CRBO, with luck, all you will end up with is a story to tell. Surprising, irritating but absolutely fixable!

Easter eggs don’t just mean eggs for Easter anymore now social media refers to Easter Eggs to mean an intentional inside joke or hidden message. Hard to equate an intentional joke with company law. Mind you there will always be a rarefied few who consider compliance with company law a joke but that is another kettle of fish. 

Compliance is hard for most people, what to comply with and why, particularly when trying to do so whilst carrying out our “actual” job. Compliance though is part of our “actual” job and should form part of an on-going continuous process in any organisation.

To have compliance enter your company’s lexicon can start from something as simple as an Agenda item for the next Board Meeting.

• Have compliance an Agenda item for discussion at every Board Meeting.

• Agree top five compliance issues or concerns and start knocking them off one by one.

• Consider appointing one person to lead the compliance processes in your company.

• Types of compliance issues could include any of the following.

• Anti-Money laundering legislation – when is the last time a review was undertaken on how your company manages AML?

• Risk Register – does your company have one, when was it last reviewed by the Directors at an actual meeting?

• Beneficial Ownership – a company must maintain an internal statutory register of beneficial ownership whilst ensuring it also files and continues to update filings with the Central Register of Beneficial Ownership.

• Statutory Registers – are they all current and have you cross-checked with statutory filing in the Companies Registration Office.

• Constitution / Shareholder Agreement – when was your Constitution last reviewed, and does it run in tandem with the Shareholder Agreement or, as is often the case, do they have contradicting clauses?

• Policies – what policies are in place, when were they last reviewed? The horrific invasion of Ukraine sparked most companies to review EU Sanctions Policies which has, in turn, focused the attention of Directors, Managers on Staff on Ethics & Sanctions in a manner that could never have been imagined possible before.

Don’t try and do it all at once, make a start, keep up the momentum and then you can go and buy an actual real Easter Egg. I hope you will all have a fabulous Easter with or without an egg!

This New Year is exceptional bringing with it a New Beginning for us all.

I hope that this New Year will enable us all to start to understand and come to terms with the impact of the past two years, enable us all to find our own individual path away from the Pandemic, and have the strength to deal with whatever lies in our futures in 2022.

Companies in 2022 will continue to face the pressures of reacting quickly not just to the Pandemic but now to the seemingly overnight transformation wrought by the recent lifting of so many restrictions.

On a perhaps more mundane level the Government recently announced its legislative programme for 2022 listing 44 Bills to be drafted and published in 2022. The 44 Bills range over virtually every aspect of public, private and corporate life. For companies though perhaps the Bills of most interest will be

• Competition (Amendment) Bill

• Protected Disclosures Bill

• Co-op Societies Bill

• Limited Partnership Bill

• Communications (Data Retention and disclosure) Bill

• Cybercrime Bill

• Charities Amendment Bill

• Right to Remote Working Bill

The Office of the Director of Corporate Enforcement will soon be transformed into the Corporate Enforcement Authority by the Companies (Corporate Enforcement Authority) Act 2021 signed into law on 22.12.2022 and expected to be commenced any day now. It will be interesting to see how the once familiar ODCE will operate and be judged as it morphs into the Corporate Enforcement Authority.

A shareholder can be either an individual or a company. The rights of a shareholder vary depending on issues such as the company’s Constitution, Shareholder Agreements, type of shares, etc.

A company’s Constitution will spell out the type of authorised shares and specific rights attaching such as voting rights, dividend payments, etc. Unlike the Constitution which is a public document filed in the Companies Registration Office a Shareholder Agreement is private document. A Shareholders Agreement covers issues such as rights to shares, rights to nominate an individual to the Board of Directors, and funding.

When a company is incorporated Members appoint Directors to manage the company on their behalf. As and when the Directors approve and sign the Financial Statements they are then presented to the Shareholders at an Annual General Meeting. This is when Shareholders have an opportunity to question Directors on how they managed the Company during the year and what their plans are for future development.

If you are a Member / Shareholder make sure your details are accurately reflected in the Statutory Register of Members. Without your current details including your current home address the company has no way of contacting you which is much more likely going to be more of a loss to you then to the them.

As part of the appointment process every Director acknowledges he/she is responsible for securing their company complies with all relevant obligations. Two examples of “relevant obligations” would include compliance with the Lobbying Act 2015.

• Property companies lobbying for changes in planning law, re-zoning of land.

• Charities advocating for changes in law.

The Lobbying Regulation (Amendment) Bill 2020 seeks to reform the Lobbying Act 2015. One of the proposals in the Bill will be the ability for a Designated Public Official to cease communicating with a lobbyist where they are aware that the person or body carrying on lobbying activities has failed to comply with the Act.

Transparency Ireland carried out a review of disclosure practices of 30 of Ireland’s top companies across a range of indicators including Responsible Political Engagement. Whilst a number showed leadership in the area it is fascinating to note that most of the companies did not disclose a policy on responsible political engagement. Indeed, 28 out of the 30 companies reviewed did not publish rules or policies dealing with “revolving doors” (the movement of staff rom the public sector to companies or vice versa).

For greater detail on this topic take a look at www.lobbying.ie and www.transparency.ie