1- As to the deposit of the annual accounts relating to the 2021 financial year
The improvement in the health situation derived from COVID-19 is gradually allowing a return to normality and with it, the repeal of a large part of the extraordinary measures that were adopted in corporate matters throughout the years 2020 and 2021.
Thus, for the presentation of the annual accounts related to the 2021 financial year, we return to the ordinary deadlines established in the Law, so, specifically, all those subjects obliged to deposit the annual accounts in the Mercantile Registry, must attend to the following deadlines and formalities:
Formulation of annual accounts: The company’s administrative body has a period of up to three (3) months from the closing date of the fiscal year to prepare the annual accounts (until March 31, 2022 for a fiscal year closed on December 31, 2021).
All those obliged who by law or by voluntary submission have appointed an auditor of accounts, must make them available to him, for the timely preparation and form of the audit report, which will form an integral part of the accounts.
Approval of annual accounts: Within six (6) months after the close of the fiscal year, and in accordance with the procedure established in the Companies Act, the annual accounts must be submitted for approval by the General Meeting of partners or shareholders, as appropriate (up to 30 June 2022 for the year ended December 31, 2021).
The General Meeting of partners or shareholders, as the case may be, must be convened in a timely manner in accordance with the provisions of the bylaws and the Law, not being possible, from this year 2022, to hold meetings through telematics means unless that the bylaws expressly provide for it.
Presentation of annual accounts in the Mercantile Registry of the registered office: After its approval, the administrative body has up to one (1) month from the date of its approval to deposit the annual accounts in the Mercantile Registry corresponding to that of the company’s registered office (until July 30, 2022 in assuming they are approved on June 30, 2022).
All computations provided above follow the criteria date to date.
As a special peculiarity, it should be noted that, as happened the previous year, for the presentation of the annual accounts for the 2021 financial year, it is mandatory that they be duly accompanied by the so-called “Covid Sheet”.
Likewise, we remind you that after the approval of Royal Decree 2/2021, of January 12, which approves the Regulations for the development of Law 22/2015, of July 20, on Audit of Accounts, the lack of deposit of the annual accounts in the Mercantile Registry will be sanctioned, not only with the closure of the company’s registry sheet, but also financially. You can find more information about it in our previous publication.
2- As to the legalization of accounting and corporate books
At the same time as the obligations set forth in the previous section, article 27 and concordant of the Code of Commerce, provide that all those individual entrepreneurs who carry out a business activity, commercial companies or all those subjects who by legal provision must be registered in The Mercantile Registry, as well as the foundations and associations, must, within four (4) months following the end of the fiscal year, submit the following books for legalization before the Mercantile Registry of their registered office;
- Diary book. Art. 25 of the Commercial Code.
- The Book of Inventories and Annual Accounts. Art. 25 of the Commercial Code.
- Book of Minutes of the General Board of Boards and of the collegiate bodies of the company: All the minutes of the General Board that the company has held throughout the year must be collected. In the event that the administration of the company corresponds to a council, a minimum of four (4) minutes must be legalized corresponding to the minimum number of legally established quarterly sessions. Art. 26 of the Commercial Code and art. 106 of the Mercantile Registry Regulations.
- Registry Book of Partners or Shareholders; The annual legalization of the Partners or Shareholders Registry books will be excepted and therefore will not be necessary, in those companies in which no changes have been made in the participative or shareholding situation. Art 104 and 116 of the Capital Companies Law.
- The Contract Registry Book in the case of Sole Proprietorship in accordance with art. 16 of the Capital Companies Law.
- And any others that are carried out by businessmen in the scope of their activity, art. 329 of the Mercantile Registry Regulations.
The books must be provided in one of the electronic formats accepted by the Mercantile Registry and their presentation will be carried out exclusively through telematics means.
From the mercantile point of view, to date, no type of sanctioning regime has been established for the lack of legalization or extemporaneous compliance with the obligation to legalize the books, unlike what happens with the lack of deposit of the annual accounts.
Notwithstanding the foregoing, article 200 of the General Tax Law considers non-compliance with accounting and registry obligations as a serious infraction, for which reason the non-legalization of the books could lead to the imposition of a pecuniary sanction of between 150 and 300 euros. However, to date, there is no evidence of the imposition of sanctions solely and exclusively motivated by the lack of provision of the books in a timely manner.
In addition to the above, the legalization implies an obligation of the entrepreneur and/or the company’s administrative body, therefore, failure to comply with it could lead to responsibilities for them. Likewise, it is worth noting the evidentiary value of the books when defending a position or operation before the Tax Agency, the courts or a dissenting partner.
Without another particular, indicate that, regardless of the deadlines referred to above, all those books pending legalization may be legalized extemporaneously, as well as rectify the content of those already deposited.
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