The recent decision of the Directorate General of Registries and Notaries (Dirección General de los Registros y del Notariado – DGRN,hereinafter “DGRN”) of 21st December 2016 manifested that it is not possible to deposit annual accounts without an auditor’s report, when the company has voluntarily appointed an auditor and the auditor is registered at the Commercial Registry, although the company shareholders (partners) fill the post of joint and several administrators of the company.
With regards to said decision, the Registrar did not proceed with the registration of the annual accounts filed by a company. This was because the auditor’s report was not attached to the annual accounts. The records of the registry indicated that an auditor had been voluntarily appointed for the financial years 2015, 2016 and 2017 by an administrator of the company.
One of the joint and several administrators of the company filed opposition to this qualification on behalf of the company, alleging the following:
- The Registrar indicated that the decision of the DGRN dated 15th March 2016 as the reason for not proceeding to register the annual accounts filed by the company, however, the circumstances of this case in particular were different, given that the voluntary appointment did not arise from the general meeting, but instead from the company administrators.
- In this case, all of the company administrators are joint and several administrators; therefore, not attaching the auditor’s report does not harm the minority shareholders (partners), because there is no limit whatsoever on the obtention of information, given that all of the relevant information concerning the annual accounts of the accompany is available to said minority shareholders.
The DGRN expressed the following, in response to the aforementioned claims:
When a company which is not legally obliged to audit the company accounts with an auditor, but does however decide to appoint one and voluntarily register the appointment at the Commercial Registry, the DGRN repeatedly applies the doctrine of not proceeding to register annual accounts without the corresponding auditor’s report.
The company claims that its auditor was not appointed by the general meeting, but instead jointly by the company directors, thus it is not appropriate to apply the conventional criteria to this case, however, the reason for the decision taken by the DGRN fundamentally lies in the protection of minority shareholders (partners) and, therefore, does not accept the reason given by the company concerning how the auditor has been appointed, whether by the general meeting or directly by the administrators.
Furthermore, regarding the allegation on the part of the company regarding the inexistence of harm to minority shareholders (partners), it is worth noting that the Commercial Registry does not publish information regarding the company shareholders (partners) except under unusual circumstances, therefore, the shareholders (partners) of the company are unknown. Furthermore, there was only a sole administrator at the time of incorporating the company, who is also the claimant in this case.
The DGRN thus rejected the appeal formulated by the company on the grounds stated in the above paragraph.
This decision formally indicates that the registrar does not dispose of the information which corroborates the inexistence of real and harmful situations for the minority shareholders (partners) and, as a consequence, the obligation to file annual accounts with an auditor’s report is unavoidable when a company has voluntarily elected an auditor.
Mika Otomo
Vilá Abogados
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20th of January 2017
