Part 10 Returns to the registrar of companies
Every company must file various returns with the registrar of companies. The returns and when they should be filed are clearly set out in the Companies Act 2006. A list of the most important returns together with the relevant timescales are set out below. The returns held by the registrar of companies are useful in providing important information about a company, its trading and how it is managed to the public.
A company must submit an annual return to the registrar of companies. The director(s) and secretary (if applicable) are responsible for ensuring that they deliver the annual return to Companies House within 28 days of the return date. The return date is either the anniversary of the company’s incorporation or the anniversary of the last annual return if a different date [Note 1].
If a company fails to deliver an annual return within 28 days of the due date the company, together with every director, every secretary (if applicable) and every other officer who is in default, commits an offence. If the contravention continues an offence is committed by every officer who did not commit an offence initially. A director or secretary who shows that they took all reasonable steps to avoid the failure or the continuing failure will not be guilty of an offence [Note 2]. In addition, a company which fails to complete an annual return could see the registrar of companies taking steps to strike it off the register as he/she believes the company is no longer trading, see part 14.
The content of the annual return is specified in the Companies Act 2006 [Note 3] and provides a small window into the company at a specific date. The annual return shows, amongst other things;
A company’s annual return is completed on form AR01. A proforma form can be found here. This form, as well as other forms may be delivered to the registrar of companies in paper form or electronically [Note 4]. Companies House have introduced two schemes, Software Filing or Webfiling to allow documents to be filed electronically. However, the registrar of companies has the powers to alter the manner in which forms are delivered to him/her [Note 5].
The fee, for filing paper documents is currently £40 and the fee for filing documents electronically via Software Filing or Webfiling is £14, the fee is payable when making the annual return. The up-to-date filing fees can be obtained from the Companies House website.
Private limited and public companies must file their annual accounts and various reports with the registrar of companies [Note 6]. However small and medium sized companies may file an abbreviated version of these accounts which contain less detail [Note 7]. If the company submits abbreviated accounts, and is not exempt from audit, it must also file a special auditor’s report. The auditor’s report confirms that the company is entitled to file abbreviated accounts and that they have been properly prepared in accordance with the relevant regulations [Note 8].
All companies must file with the registrar of companies their annual accounts, the directors’ report and the auditor’s report, if applicable, for each financial year [Note 9]. In addition a quoted company must file with the registrar of companies the directors’ remuneration report [Note 10]. There are, however, concessions for small (see paragraph 75.174) and medium sized companies (see paragraph 75.176).
A small company (see paragraph 75.175) must file with the registrar of companies each year a copy of a balance sheet drawn up to the last day of that financial year. If the company does not want to take advantage of the exemption and to issue abbreviated accounts (see paragraph 176) instead, these must be filed together with a copy of a special auditor’s report. The special auditor’s report should confirm the company’s entitlement to prepare or deliver such accounts [Note 11]. A small company may, if it wishes file a full set of accounts as per paragraph 75.173 [Note 12].
A small company is one with a turnover of not more than £5.6 million a year and whose balance sheet total for that year is not more than £2.8 million [Note 13]. The small company qualification excludes public companies, authorised insurance companies, bankers, some other finance companies and companies created under sections 117(1) and 122 of the Trade Union and Labour Relations (Consolidation) Act 1992 [Note 14].
A company is treated as a medium sized company if it qualifies in the current financial year and would have qualified in the preceding year. To qualify a company has to satisfy two or more of the following criteria:
A medium sized company may file an abbreviated set of accounts that includes a profit and loss account in which figures are combined in accordance with regulation 4 of the Large and Medium-Sized Companies and Groups (Accounts and Reports) Regulations 2008 [Note 16]. Schedule 1 of the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 sets out what is required in preparing a set of accounts.
A company’s first accounts, if they cover a period of more than 12 months, must be delivered to the registrar of companies within 21 months of the date of incorporation for private companies or within 18 months of the date of incorporation or 3 months from the accounting reference date, whichever is the longer for public companies. Thereafter the filing requirements are 9 months from the accounting reference date for private companies and 6 months from the accounting reference date for public companies [Note 17]. If a company has not filed its accounts within the specified time limits a member or creditor may apply to the court for an order directing the directors to make good the default [Note 18].
If a company fails to file its annual accounts with the registrar of companies before the end of the period allowed every person who immediately before the end of that period was a director commits an offence. A director will have a defence if they can prove that they took all reasonable steps to ensure compliance [Note 19]. In addition to any possible criminal prosecution the company is liable to a civil penalty. The amount of the penalty to be determined by regulations made by the Secretary of State, recovered by the registrar of companies and paid into the Consolidated Fund [Note 20].
A company may apply to the registrar of companies to extend the time for delivering accounts. The application must contain a full explanation of the reasons for the extension and the length time required and must be made before the normal filing deadline [Note 21].
Where the directors consider the annual accounts and reports do not comply with the statutory requirements they may be revised voluntarily. The extent of the revisions will be limited if the accounts and returns have been sent to members, filed with the registrar of companies or, in the case of public companies, laid before a general meeting. In these cases the revisions must be limited to the correction of those aspects that do not conform to the Companies Act 2006 and, if applicable, Article 4 of the IAS Regulation (EC Regulation No 1606/2002) [Note 22]. If the annual accounts and returns have been sent to members, filed with the registrar of companies or, in the case of a public company, laid before a general meeting the Secretary of State can ask the directors to provide an explanation as to why they do not comply with the requirements of Companies Act 2006 and, if applicable, Article 4 of the IAS Regulation (EC Regulation No 1606/2002) [Note 23]. If the Secretary of State is not satisfied with the directors’ response he/she may make an application to the court for an order requiring the directors to prepare revised accounts or reports that comply with the Companies Act 2006 or, if applicable, Article 4 of the IAS Regulation (EC Regulation No 1606/2002) [Note 24].
As well as filing the annual return and the annual accounts with a registrar of companies a company’s directors must also file returns as a result of various changes in circumstances and other events. The following examples are not an exhaustive list of every return a company must make. A full list of forms available from Companies House, to be used when making the returns, can be found here.
A company can change its registered office by giving notice to the registrar of companies. The change takes effect upon the registrar of companies changing the entry in the register. A person may still serve documents at the old registered office for up to 14 days after the address has been changed, unless the company cannot fulfil this duty due to unforeseen circumstances and has notified the registrar of companies of the change in its registered office within 14 days of doing so [Note 25].
A company can voluntarily change its name (see paragraph 75.39 for changes instigated by third parties) either by special resolution or within the rules set out in its articles of association [Note 26]. Where the company changes its name by special resolution the directors must notify the registrar of companies. The company is obliged to also forward a copy of the resolution [Note 27]. Where the company changes its name by other means provided for in its articles of association the directors must notify the registrar of companies including a statement that it has been done in accordance with its articles of association [Note 28]. Once the registrar of companies is satisfied that the change of name has been effected correctly he/she will enter the new name on the register and issue a new certificate of incorporation [Note 29]. The change of the company’s name is effective from the date of the new certificate of incorporation [Note 30].
A company must notify the registrar of companies within 14 days of the event if a director resigns or is removed from office and/or a new director is appointed. The registrar of companies must be notified within 14 days if there is a change in a director’s details contained in the register of directors or register of directors’ residential addresses. An offence is committed if by the company, and every officer who is in default, for failure to comply with these requirements [Note 31].
A company must notify the registrar of companies within 14 days of the event if a secretary resigns or is removed from office and/or a new secretary is appointed or if there is a change in a secretary’s details contained in the register of secretaries. An offence is committed by every officer who is in default, if the company fails to comply with these requirements [Note 32].
A company must, within one month, file a return of an allotment of shares. The return must show the class of shares, number allotted, nominal value of each share, amount paid, amount remaining unpaid together with a statement of capital. The statement of capital shows the number of shares of the company, the aggregate nominal value of those shares, the amount paid up and the amount, if any, unpaid on each share. The statement of capital also shows for each class of shares the rights attached to those shares and the aggregate nominal amount of shares of that class [Note 33]. An offence may be committed by every officer who is in default, if the company fails to submit such a return [Note 34].
A charge or mortgage on property is the security a company may give in return for a receiving a loan. Most charges or mortgages must be filed with the registrar of companies [Note 35]. The time limit for registration of the charge or mortgage is 21 days beginning with the day after the day on which the charge is created. Separate arrangements apply to charges created outside of the United Kingdom [Note 36]. The following are examples of charges which must be registered, a charge on land, a charge to secure the issue of debentures, a charge on book debts, and a floating charge on the company’s property or undertaking [Note 37]. An offence is committed by the company and every officer who is in default, for failure to comply with these requirements [Note 38]. If the charge is registered by a third party the company does not commit an offence if it fails to comply with these regulations [Note 39].
A company must comply with the requirements for registering a charge, see paragraph 75.188 or the charge is void against a liquidator of the company, an administrator of the company or a creditor of the company [Note 40]. For more information on charges and debentures see Part 5 of Chapter 40.