New penalty system for failure to file annual accounts
The Regulations of the Commercial Register provide that the directors of public limited companies, limited liability companies, limited joint-stock companies, mutual guarantee companies, pension funds and, in general, any other entrepreneurs who are obliged to publish their annual accounts must file them with the Commercial Register depository of their domicile within one month of their approval.
Failure by the administrative body to comply with its obligation to file the annual accounts within the established period will result in the imposition of a fine by the Instituto de Contabilidad y Auditoría de Cuentas (ICAC), which may range from 1,200 euros to 60,000 euros, following the investigation of the case in accordance with the procedure established in accordance with the Law on Public Administrations and Common Administrative Procedure. However, when the company or, as the case may be, the group of companies has an annual turnover in excess of 6,000,000 euros, the fine limit for each year of delay shall be increased to 300,000 euros.
Notwithstanding the above, if the company has filed its annual accounts prior to the commencement of the penalty procedure, the penalty will be imposed at the minimum level and reduced by 50%.
However, despite the fact that the Capital Companies Act already established the penalty regime in the event of non-compliance with the obligation to file accounts, in many cases, the Spanish Accounting and Auditing Institute (ICAC) has not applied it.
Royal Decree 2/2021, of 12 January, approving the Regulations implementing the Audit Law, published in the Official State Gazette on 30 January, incorporates in its eleventh additional provision a new system of penalties for non-compliance with the obligation to file accounts.
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Royal Decree 2/2021, which approves the Regulations implementing the Accounts Auditing Act, introduces measures to complement the existing penalty regime established in article 283 of the Capital Companies Act (LSC).
Firstly, the regulation makes it possible for commercial registrars to manage and propose decisions on disciplinary proceedings for non-compliance with the duty to file annual accounts.
The second new feature is that the deadline for processing the sanctioning procedure is set at 6 months from the adoption of the resolution to initiate the procedure, without prejudice to the suspension of the procedure and the possible extension of this period.
The third novelty is the inclusion of the criteria on assets and sales used to impose sanctions, within the limits established in the LSC:
– In general, the penalty will be 0.5 per thousand of the total assets, plus 0.5 per thousand of the company’s sales, according to the last declaration filed with the Tax Agency, the original of which must be provided in the processing of the procedure.
– In the event that the company does not submit the tax return, the penalty will be set at 2% of its share capital according to the data recorded in the Commercial Register.
– If the tax return is submitted, and the result of applying the aforementioned percentages to the sum of assets and sales is greater than 2% of the share capital, the penalty will be set at the latter reduced by 10%.
In short, the aim of this new penalty regime for failure to file annual accounts with the Mercantile Register is to strengthen the fight against inactive companies.
