New consequences derived from the lack of deposit of the annual accounts
In Spain, the Mercantile Registry estimates that there are close to 1.5 million inactive companies and, until now, not depositing the Annual Accounts in the Mercantile Registry did not entail legal consequences or for the company, nor for its administrators or liquidators.
However, as of the entry into force on February 1, 2021 of the Regulations for the Development of the Account Audit Law (Royal Decree 2/2021, of January 12) , companies that fail to comply with the legal obligation to deposit the annual accounts in the Mercantile Registry within a maximum period of one month from their approval may derive legal consequences, as establishes the Ley de Sociedades de Capital (LSC) in application of the aforementioned Regulation.
What are the Annual Accounts?
Annual accounts are reports that companies use to report their economic and financial situation, as well as to indicate the changes experienced in a given period . The balance sheet, the profit and loss account, the statement of changes in net worth, the cash flow statement (those required to present it) and the memory are part of the annual accounts.
In addition, companies that cannot formulate the balance sheet and the statement of changes in equity in an abbreviated form will have the obligation to accompany these annual accounts with a management report in which the evolution of the business and its financial situation are detailed, as well as the risks, uncertainties and opportunities (art. 262 LSC).
The companies that are required to present the annual accounts are public limited companies, limited liability companies, < strong>foreign companies with a branch in Spain, companies limited by shares and mutual guarantee , pension funds and any businessperson who has the obligation to publish their Annual Accounts.
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Deadline for submission of annual accounts
Unless the company bylaws establish another date, the fiscal year ends on December 31 of each year (corresponding to the calendar year).
The LSC establishes that, as of this date, the administrators of the company will have a period of three months to comply with the obligation to formulate ( prepare) the annual accounts for the year. After its formulation, a period of three more months begins during which there is an obligation to call an Ordinary General Meeting in which the annual accounts of the previous year must be approved.
Finally, once the General Meeting is held in which the annual accounts are approved, they must be submitted to the Mercantile Registry of the registered office within a month.
The penalty regime and amount of penalties
Royal Decree 2/2021, of January 12, strengthens and intensifies the penalty regime established in art. 283 LSC.
From now on, commercial registrars are allowed to carry out procedures and proposals for decisions on disciplinary proceedings related to breach of the duty to deposit annual accounts and a Within six months from the adoption of the initiation agreement to process the disciplinary procedure, without prejudice to the possibility of suspending the procedure or extending the term.
Once the procedure is initiated, the Institute of Accounting and Auditing (ICAC) will be the one who sanctions and the Tax Agency (AEAT) will be the one who collects the fines imposed on companies that fail to comply with the obligation. Likewise, in accordance with the Tax Control Plan of the AEAT, the Treasury will proceed to withdraw the NIF of the company and, thus, it will proceed to its elimination from the Registry, which implies the civil death of the company. Likewise, the registration sheet will be provisionally closed.
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Quantification of the amount of the penalty fee
In relation to the quantification of the amount of the penalty fee, new criteria on assets and sales are introduced, respecting the limits established in the LSC:
- From now on, the penalty fee will be 0.05% of the total amount of the asset items plus 0.05% of the entity’s sales figures detailed in the last statement filed with the Tax Agency (the original must be provided in the processing of the procedure).
- Companies that do not provide the aforementioned tax declaration will have a penalty of 2% of the share capital according to the data in the Mercantile Registry.
- In those cases in which a tax declaration is provided but the percentages mentioned are greater than 2% of the share capital, the penalty fee must be calculated reduced by 10%, compared to 2% of the share capital.
In addition to the criteria just mentioned, the sanction imposed on the company must be determined based on the size of the company. The art. 283 LSC establishes limits within which these sanctions are framed ranging from €1,200 to €60,000 in the case of SMEs and up to €300,000 per year in the case of companies whose Net Turnover Amount (INCN) is greater than 6 million euros per company or per group.
The term to sanction will prescribe three years and those companies that have deposited the annual accounts prior to the initiation of the sanctioning procedure will have the sanction imposed in its minimum degree and reduced in 50%.
Conclusion
The Bankruptcy Law provides that there will be guilty bankruptcy if the annual accounts are not prepared, if they are not audited despite being obliged to do so or if they are not deposited in the corresponding Mercantile Registry in one of the last three years prior to the declaration of bankruptcy.
Thus, when there is a lack of diligence in the presentation of the annual accounts by a businessman whose company is in a situation of insolvency, this may lead to the businessman having to respond of the company’s debts, since it assumes that the administrator has not been acting with due diligence in a businessperson and, consequently, there would have been damage to the company, which damage could be claimed from the company by both the company itself and the partners or a third party.
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04/26/2021
