In this article, we will analyse the Resolution of the General Directorate of Legal Security and Public Trust of the 22nd January 2021 in relation to a negative decision by the registrar of the Barcelona Commercial Registry regarding the deposit of the annual accounts by a professional limited company.
The appeal that said Resolution intends to resolve refers to the filing of annual accounts during three fiscal years, in the years 2016, 2017 and 2018, with regard to which the registrar ascertains a series of faults. Of these faults, the most notable is that relating to whether or not it was necessary to obtain the corresponding audit report which was requested by a minority partner who, after this request, was duly excluded from the company.
First of all, for a clearer understanding of the matter, we must introduce the concept of the right of exclusion of partners. In theory, each partner in a company can disassociate themselves from said company, either voluntarily (through the right of separation), or forcefully through the choice of the company (through the right of exclusion). This right of exclusion is regulated for capitalist companies in the Spanish Companies Act (articles 350 onwards) and, for professional companies, in article 14 of the Spanish Professional Companies Act. According to those legal bodies, for different reasons, legal as well as statutory, a company is allowed to expel (exclude) a member as long as several requirements are fulfilled: decision of the partners’ meeting, report of an independent expert, reimbursement of the reasonable value of their stake, etc.
In order to understand the problem that is resolved in the appeal, we also need to raise the matter of the right recognised in article 265 of the Spanish Companies Act for appointing, by the registrar of the Commercial Registry (which corresponds to the registered office of the company), an accounts auditor, at the request of the partners who represent at least five percent of the company capital, following a number of procedures.
Once this concept has been introduced, the following question we have to consider in this respect is the moment from which the exclusion of the partner shall be effective. In this case, the Spanish Companies Act, here applicable, clearly establishes in article 14.3 that the decision to exclude the partner will be effective from the moment in which the affected partner is notified, which, in the analysed appeal, takes place on the 16th April 2020; that is to say, after the moment of the request for the appointment of auditors for the fiscal years 2016 and 2018.
In the light of the registrar’s refusal to register the deposit of the annual accounts of the fiscal years for which the report was requested although not yet provided, the appellant aims to correct the fault by alleging that the Commercial Registry already had access to the public deed of exclusion of the partner who duly requested the report in a timely manner, and that, therefore, this report is no longer relevant, and it is not necessary to provide it for the accounts of previous fiscal years.
In this case, the registrar responds with two questions which are important to differentiate: one relating to procedure and the other relating to substance.
Regarding substance, the registrar clarifies that, pursuant to articles 265.2 and 279 of the Spanish Companies Act, the deposit of the annual accounts of a company cannot be deemed to have been completed when the minority partner of said company has requested the accounting verification without said report having been filed. For this reason, in order to assess the deposit of the accounts of a fiscal year for which the accounting revision has been requested, the corresponding report is required, despite this dealing with prior fiscal years, which in reality were not relevant, for at that time there was no partner requesting this. In this regard, it is recalled that, on the date of the request of the reports, the partner had not yet been excluded, and that the moment of assessing the status of being a partner is that in which the procedure of appointing the auditor is initiated.
Finally, with regards to the procedure, the registrar clarifies in their report, and the General Directorate confirms, that, in the appeal filed against the refusal of the registrar, which must follow the procedures of articles 325 onwards of the Mortgages Act, no new documents or data may be submitted which were not submitted at the time of requesting the registrar’s decision. It is here that we must praise the work of the registrar who, while having the option to cover themselves with the fact that there is no legal norm obliging them to accept documents which are different from those which they had for the initial assessment subject to the appeal, they proceed to review the documentation provided, to understand that certain faults have been corrected while maintaining their original assessment for other defects. This displays an interest in helping the procedural economy for the benefit of the operators who act in the mercantile traffic and who are associated with the registration institution.
Jaime Madero
Vilá Abogados
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