Steps for restoring a company to the register

Introduction

The following are some general guidelines for restoring an Irish company to the register of companies. While we hope that they will be of some assistance to readers, please note that this is a complex area of law and it is recommended to seek specialist legal advice, particularly when it comes to making court applications for restorations.

With that in mind, here are the steps for restoring a company to the register:

Step 1: Establish that the company was dissolved, when it was dissolved and why.

This information can easily be found by searching for the name of the company on the CRO website. Here you will be able to confirm that the company was dissolved and the date of dissolution. If it has been dissolved for more than 20 years then it is no longer possible to restore it to the register. You will also be able to find some clues about the reason for its dissolution; whether it was wound up, voluntarily struck off the register or removed by the Registrar for failing to file returns and accounts. Make a note of all of this information.

Step 2: Address the reasons for the company having been struck off the register.

Where the company was struck off for failing to file its annual returns and/or accounts then it will be necessary to instruct an accountant to prepare the missing returns/accounts for the years prior to its dissolution and every year thereafter up to the present date. This is necessary only where the application for restoration is being made by the company itself or by an officer or member of the company. A creditor would obviously not be in a position to remedy a default by the company in this regard and it is not expected to do so. This does not mean however that a creditor's application is easier or less expensive since (a) a creditor must always apply to the court for restoration and (b) such applications are more likely to be opposed, making them more expensive.

Step 3: Apply for administrative restoration

A restoration application may be made to the CRO under section 737 of the Companies Act 2014 where the company has been struck off the register for less than 12 months (or six years in the case of an Owner Management company). That application is made by submitting the form H1 to the CRO not later than the last working day before the 12-month anniversary of the company being struck off (or the form H1-OMC in the case of an owner's management company to be submitted no later than the day before the six-year anniversary of strike-off). Where the company was struck off due to a failure to file Revenue returns, the form must be accompanied by a letter from Revenue confirming that the company has filed outstanding returns. The Form H1/H1-OMC must be filed online and currently has a filing fee of €300. Additionally, it will be necessary to pay late filing fees and penalties in respect of outstanding returns. Applications for administrative restoration may be made only by persons who were members or officers of the company at the date of its dissolution. Therefore, the application is not available to a creditor unless he/she was also a member or officer at the date of dissolution. Moreover, it is important to note that a "member" is not necessarily the same thing as a shareholder.

Step 4: Apply to the court for a restoration order

Where administrative restoration is unavailable – either because more than 12 months have elapsed since the date of dissolution or the applicant was not a member or officer of the company at that date – then it is necessary to apply to the court for a restoration order. The application is made pursuant to section 738 of the Companies Act 2014.

Step 5: Appoint lawyers to represent the company

Unlike in the case of administrative restoration, it will always be necessary to appoint a lawyer for a court ordered restoration. There are two reasons for this: the first is that only a lawyer can represent a company in court (a director has no standing to do so) and the second is that the application itself is highly specialised. It requires the preparation of lengthy affidavits which must contain specific information and exhibit specific documentation. When the papers are in order, the majority of applications are successful. However, this will depend on the facts of the case and indeed on whether the application is being opposed (an application is most likely to be opposed if it is being made by a creditor).

Step 6: Gather relevant and necessary documentation

The documentation required for a court-ordered restoration is far more extensive than for administrative restoration. Of particular importance are a number of letters of no objection obtained from various State agencies such as the CRO and Revenue Commissioners. In the past few years, these letters have become increasingly more challenging to obtain. For example, if the company owes significant taxes to the Revenue Commissioners then it is likely that you and/or the company's accountant will need to reach some form of payment plan before Revenue will issue its letter. This appears to have become common practice on Revenue's part, although it is arguably dubious for State bodies to take advantage of restoration applications in this way. Nevertheless, your account and lawyers should be able to assist you in obtaining the required documentation. No such letters are required where the application is being made by a creditor.

Step 7: Be patient

Unfortunately, obtaining court orders is a slow process. It typically takes between 6-8 weeks from the time you first contact your layer to obtain a restoration order in the High Court. You can expect it to take longer if the application is being opposed or if there is difficulty in obtaining the letters of no objection. Your lawyer should be in contact with you throughout this time keeping you updated and requesting information where necessary.

Step 8: Deliver a copy of the order to CRO

The court work involved in obtaining the order will be handled by your lawyers. But once the order is made, it must be forwarded to the CRO no later than 28 days from the date of its perfection (usually the same day or the day after the date the order is made). The order will lapse if it is not delivered on time. Most lawyers will arrange this for you but make sure to confirm that it is part of their service and, if it is not, be sure to deliver the order personally. The CRO operates under statutory time limits which are strictly enforced and the last thing you want is to have to make the application again!

Author: Mahmud Samad BL
Publication date: 2nd June 2023

CORPORATELEGAL