Company restoration is possible when a company has been struck off the register for no more than 12 months, allowing it to apply through the Registrar of Companies. If more than 12 months have passed since the strike-off, a Court Order Restoration is required. This guide covers both methods of restoration, their requirements, and key considerations. Please note that creditor-related restorations are not covered in this blog.
1. Company Restoration via Administration
A company that has been struck off under Section 733 of the Companies Act 2014 may apply for restoration by submitting Form H1 within 12 months of the dissolution date. For instance, if a company was dissolved on 17th February 2019, the restoration application should be received by the Registrar on or before 16th February 2020.
Key Requirements for Administration Restoration:
- Form H1 Submission: The Form H1 must be submitted to the CRO within 12 months of the dissolution. This form is available solely through CORE.
- Other Criteria for Restoration (15-Month Deadline): All of the following must be satisfied within 15 months of dissolution:
- EEA Resident Director: The company must have an EEA-resident director in compliance with Section 137(1) of the Companies Act 2014. A bond or Real and Continuous Link with Revenue is also acceptable.
- Annual Returns and Financial Statements: All outstanding annual returns and financial statements must be submitted through CORE. These must be separate for each financial year, and any late filing incurs a €100 penalty, plus €3 per day after the 28-day grace period (up to a maximum of €1,200 per return).
- Secretary Appointment: The company must have a secretary in place as per Section 129(1) of the Companies Act 2014.
- Director/Secretary Changes: Any changes to directors or secretaries must be duly notified in accordance with Section 149(8) of the Companies Act 2014.
- Registered Office: The company must have a registered office in the State as per Section 50(1) of the Companies Act 2014.
- Revenue Compliance: If the company was struck off due to failure to comply with Revenue obligations, written confirmation from Revenue is required confirming all statements under Section 882 of the Taxes Consolidation Act 1997 have been delivered.
Additional Requirements for Owners Management Companies (OMC)
If an Owners Management Company (OMC) has been struck off voluntarily under Section 733 of the Companies Act 2014, Section 311 of the Companies Act 1963, or Section 12 of the Companies Amendment Act 1982, the company can apply for restoration within six years from the dissolution date.
Specific OMC Requirements:
- Form H1-OMC Submission: OMC restoration applications require Form H1-OMC, available through CORE. If the dissolution occurred within one year of the application, Form H1 may be submitted instead. If a member is applying for restoration, Form H1-OMC is necessary.
- Certified Documents Required: The application must include a certified copy of the deed of transfer for common areas, signed and dated prior to the dissolution. Additionally, a fully completed MUD certificate (Multi-Unit Development) must accompany the application.
- Compliance with Annual Returns: Similar to general companies, all required annual returns and financial statements must be filed, with fees and penalties as outlined above.
2. High Court Restoration
For companies struck off for more than 12 months and within 20 years of dissolution, restoration must be sought through the High Court. This application can be made by a director, officer, or member of the company, depending on the reason for the strike-off (voluntary, non-filing of returns, or non-compliance with Revenue).
Legal Consultation: It is essential to seek legal advice before pursuing High Court restoration. The following section outlines the general process and common motivations for seeking a court order.
Reasons for High Court Restoration:
According to Section 738 of the Companies Act 2014, the court may restore a company if:
- Disadvantage to the Applicant: The applicant must demonstrate that the company’s dissolution has caused disadvantage, such as the loss of assets or inability to operate legally.
- Restoration within 20 Years: The application must be made within 20 years of the dissolution.
- Just and Equitable: The court must consider it just and equitable to restore the company.
Common Reasons for Seeking Restoration:
- Preservation of Assets: After 20 years, a dissolved company’s assets are transferred to the Minister for Finance. Restoration may allow for the recovery of assets that have increased in value.
- Resumption of Business Operations: A company may wish to resume its business activities, facilitating ongoing trade or the pursuit of new business opportunities.
- Access to Financial Resources: Restoration allows access to any funds in the company’s bank accounts, which cannot be accessed until the company is reinstated.
- Property Management: Restoration is necessary for transferring or managing any properties held in the company’s name.
- Continued Trading: In some cases, companies may continue trading despite being struck off and may need restoration for legal continuity.
Process for High Court Restoration:
The restoration process involves several key steps, which may vary depending on the service provider. Below is an overview of the typical procedure:
1. Annual Returns and Filings:
- Filing with CORE: All outstanding annual returns and financial statements must be filed with the CRO through CORE.
- Late Filing Penalties: As with administration restoration, late filing penalties apply, with the maximum fee capped at €3,600.
2. Revenue Filings:
- Revenue Compliance: Ensure all necessary filings are completed with Revenue up to the date of dissolution. It’s advisable to communicate early with Revenue regarding any tax obligations.
3. CRO Filings:
- Director and Secretary Changes: Any changes to the company’s directors or secretary must be submitted through B10 forms to the CRO within 14 days of the change.
- Registered Office: Confirm that the company has a registered office as per Section 50(1) of the Companies Act 2014.
4. Register of Beneficial Ownership:
- If the company was struck off due to failure to deliver information to the Register of Beneficial Ownership, the company must update its records before restoration.
5. Affidavit Submission:
- A solicitor must assist in drafting an affidavit detailing the application for restoration, including company background, reasons for dissolution, and plans for the future.
6. Letters of No Objection:
- Letters from the CRO, Revenue, and the Chief State Solicitor are typically required by the court, confirming there are no objections to the restoration.
7. High Court Petition:
- The petition is submitted to the High Court by the company’s solicitor and barrister. The court hearing often involves only legal representation, with no need for the deponent to attend.
Timeframe for High Court Restoration
The entire process generally takes between three to six months, from filing the necessary returns to receiving the certified court order and final restoration.
Post-Restoration Steps:
- Lodging the Court Order: A certified copy of the court order must be submitted to the CRO within 28 days. Once lodged, the company’s status changes from “Dissolved” to “Normal.”
- Publication: The CRO will publish the restoration in the CRO Gazette.
It is important to note that until restoration is complete, directors cannot legally conduct business on behalf of the company, although they can carry out necessary actions to facilitate restoration.
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