The resolution issued by the General Directorate of Notaries and Registries (GDNR) of 13th June 2019 deals with a very interesting case concerning the obligation of the insolvency administrators of companies in liquidation to file the annual accounts of the previous fiscal year. The case in question is the following:
The insolvency administrator of the company DOÑANA TURÍSTICA, S.L. in liquidation (the “Company”), formulated and filed for deposit the annual accounts of the Company corresponding to the 2017 fiscal year on 4th January 2019. Following the examination of the documents filed, the registrar of the commercial registry of Madrid, Mr. Jesús María Del Campo Ramírez, rejected the registration of the deposit of the annual accounts for the following reason:
“not filing the certificate of the agreement of the meeting in which the accounts were approved in line with the circumstances required by article 112 of the Commercial Registry Regulation (article 366 of the Commercial Registry Regulation and Resolution of the GDNR 12/03/06).”
Said rejection was appealed on 15th March 2019 arguing that it was not necessary to provide the certificate of approval by the general partners meeting of the annual accounts of the Company in accordance with article 46.1 of the Insolvency Act, since the company was in a situation of suspension due to being in the liquidation phase of the insolvency proceedings, and thus it lies with the insolvency administrators to formulate the annual accounts, and, where appropriate, to submit them to audit, without any provision for the need for them to be approved by the general partners meeting before their deposit.
Therefore, in spite of the question regarding whether the obligation for the annual accounts of the company to be approved subsists when the company is in the liquidation phase giving rise on several occasions to doctrinal debate, the GDNR decided to dismiss the appeal filed and to confirm the contested classification through the application of articles 272, 371.3 and 388.2 of the Spanish Capital Companies Act.
Nevertheless, and with no relation to the aforementioned case, the GDNR raised in its resolution the possibility that given that the company is in the liquidation phase, the judge of the insolvency proceedings could, “taking into account the specific circumstances of the case (conflicts between partners and the insolvency administration[…]generation of additional costs, etc.)”, exonerate the company from the legal obligation to approve annual accounts, if the information provided by the administrators in the mandatory reports would guarantee the protection of all of the interests concerned.
Pedro Blanco Guardado
Vilá Abogados
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26th July 2019
