New Filing Obligations for Foreign Unlimited Undertakings with Irish Branches
With effect from 9 June 2018, unlimited undertakings formed outside Ireland (provided they are a subsidiary undertaking of a limited liability body corporate) who have established a branch in Ireland ("FUU") will be obliged to register details with the Irish Companies Registration Office ("CRO") and file financial statements annually.
What constitutes a branch?
A "branch" is not defined in legislation and therefore it has been left to be considered on a case by case basis. The Irish courts have held that a branch implies a place of business which has an appearance of permanency, such as an extension of the foreign company, having a local management system and being materially equipped to negotiate business with third parties, without recourse to the foreign aspect of the operation.
|Test||Questions to consider|
|Appearance of permanency||Do you have a permanent office and employees in Ireland? Are you Irish tax resident1?|
|Local management system||Do you have Irish based directors, management team and employees?|
|Equipped to negotiate business with third parties||Do you have the ability to transact business from Ireland without the need to take instructions from outside Ireland?|
What new obligations does this impose?
Along with general information about the FUU (i.e. constitutional documents, details regarding the branch, FUU and its directors and secretary), a FUU will be required to file its latest financial statements on registration and annually (for so long as the branch of that FUU remains established in Ireland).
What if FUU does not file in its own State?
A FUU that is not required to prepare financial statements in its country of formation shall be required to prepare accounts together with a directors’ annual report in accordance with (i) the Accounting Directive2; or (i) international financial reporting standards, and ensure those accounts and annual report be audited3 in accordance with the Audit Directive4 and submitted to the CRO within 30 days of the date they are finalised.
If you require any further advice or assistance, please speak to your usual Maples and Calder contact or those listed above.
1 FUU that is a body corporate may be considered to be Irish tax resident if it is centrally managed and controlled in Ireland
2 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC
3 Unless auditing of those accounts is not required by the relevant community act
4 Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 as amended by Directive 2014/56/EU of the European Parliament and of the Council of 16 April 2014 on statutory audits of annual accounts and consolidated accounts