The resolution dated 27th March 2017 from the Directorate General of Registers and Public Notaries (Dirección General de los Registros y del Notariado – “DGRN”), confirmed that it is possible that the registry may not accept the registration of the dissolution of a company while the said company has the registration sheet closed because it has been declared provisionally deregistered from the Index of Entities, corresponding to the State Tax Administration Agency (Agencia Estatal de Administración Tributaria – “AEAT”).

Regarding the case referred to  in said decision, the registration of both the dissolution and winding up of a company was suspended by the registry. The company had only one creditor, the aforementioned AEAT, whose debt could not be paid due to the lack of the company’s corporate asets, likewise, the company was not able to declare bankruptcy in the absence of a plurality of creditors. In addition, the AEAT credit was declared as bad debt because of the deregistration of said company from the Index of Entities.

Faced with the refusal of the registrar to proceed with the dissolution, the company in question filed an appeal insisting that a company with a sole creditor, unable to pay it’s debt to said creditor after having concluded its  winding up, may be extinguished and have its records cancelled on the registry; and that this is same criterion which the DGRN applied in the resolution dated 22nd August 2016. The only difference in this case is that the company has been declared deregistered from the Index of Entities.

However, the DGRN  dismissed the appeal based on the following arguments:

  • In accordance with the current regulation, when the registry is notified of the provisional deregistration from the registry, henceforth, the company  shall not be able to carry out further registration without presenting the certification of registration from the Index of Entities.
  • In the event of the registration closure as a result of the lack of deposit of the annual accounts, the registration of the dissolution of the company is expressly admitted as an exception. Yet, the consequences of the registration closure due to the deregistration from the Index can not be confused with closure for not filing annual accounts.
  • Dissolution and winding up of a company are not among the exceptions to the rule of registration closure due the deregistration from the Index, in consequence, the registrar shall not be able to access the registry books while the registration sheets are closed.

We can conclude that, effectively, at the Commercial Registry, registration will not take place during the term of validity of deregistration from the Index of Entities, apart from the specific exceptions established by law, even when no legal obstacle to the registration exists.

 

 

Mika Otomo

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

5st May 2017