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The recent resolution from the Directorate General of Registries and Notaries (hereinafter, the “DGRN”) of June 11th 2018, decided on the case in which a limited liability company tried to register a public deed which filed agreements made at the general shareholders’ meeting, deciding to (i) accept the resignation of two joint directors, (ii) change the administration system and (iii) name a sole director.
The Commercial Registry did not register the above-mentioned agreements since the registry sheet of the company featured:
- deregistration of the company from the Index of Entities of the State Agency of the Tax Administration,
- withdrawal of Spanish Tax Identification Number (NIF); and
- failure to file the annual accounts corresponding to the fiscal years 2014, 2015 and 2016.
In regards to the failure to deposit the annual accounts, the clear obligation to file them on time and the consequences of not doing so are regulated by the following articles:
- 282 of the Spanish Capital Company’s Act; and
- 378 of the Regulations of the Commercial Registry.
Both articles establish that, in case more than one year has passed since the closing date of the fiscal year and the company director has not yet filed the annual accounts, duly approved by the shareholders, it shall not be possible to register any documents regarding the company until said breach is resolved.
Although the above-mentioned article 282 of the Capital Company’s Act does establish some exceptions. Among them, the shareholders’ agreements of the company regarding the following may be registered:
- Dismissal or resignation of the directors, managers, managing directors or liquidators;
- Revocation or waiver of power of attorney;
- Dissolution of the company and appointment of liquidators; and
- entries ordered by the judicial or administrative authority.
The DGRN resolved the matter explaining that, even though the registration of the dismissal of the joint directors would apply based on the above article, said registration would not prosper because the company registry sheet included information regarding deregistration from to the Index of Entities of the State Agency of the Tax Administration.
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20 July 2018