Omac One
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Omac One
Accountants outline Top 7 sanctions against directors of insolvent companies
Tony Mallon of W.O.McGrory & company, CPA Registered Accountants, Drogheda, summarizes the top seven legal remedies which are available to the courts in following directors of insolvent corporations.
While personal responsibility of directors remains the exception when considering how and where directors' duties are owed to creditors of a company it is useful in today's economic climate to recall those scenarios in which personal liability might be imposed.
If in the course of a winding up of a company, or where a company has been proved to be ruined but is not being wound up, or in the course of an examinership ; any person found intentionally a party to the carrying on of the business of a company with intent to defraud its creditors or for any fraudulent purpose, might be guilty of fraudulent trading under the 1963 Companies Act.
Section 297 C.A. 1963 makes provisions for a maximum penalty of imprisonment for a term not surpassing seven years or a fine not exceeding 63,487 or both.
In addition, any such person may be personally responsible for all or any of the debts of the company as the Court may direct.
Diverting monies payable to the company to a director or shareholder, incurring credit at a time when to the understanding of the director there's no prospect of that credit being repayable, non-payment of monies to employees or to annuity funds would all constitute fraudulent trading.
In Re Hunting Lodge Limited, there had been a secret arrangement to direct 1/2 the profits of the sale of the only remaining company asset to a building society account with fictitious names.
The company was insolvent at the time.
This single transaction was sufficient to constitute fraudulent trading by the directors.
Reckless trading was introduced into Irish company law as a lesser offence to fraudulent trading to capture eventualities where there wasn't any precise intent to defraud.
If in the course of the winding up of a company or in the course of examinership proceedings or where a bankrupt company is not being wound up, it is located that any officer of the company was knowingly a party to the carrying on of the business in a reckless demeanour, then pursuant to Section 297A C.A. 1963, such person could be personally responsible for all or any piece of the obligations or other liabilities of the company.
Having regard to the general information, ability and experience that might fairly be expected of a person in that position he ought to have known that his actions or those of the company would cause loss to any creditor of the company, or - he was a party to the contracting of new company debt and did not really believe on reasonable grounds that the company would be in a position to pay that/other liabilities when falling due.
The suspect director must have data or imputed information that his actions would cause loss to creditors ; it isn't sufficient that there was a concern or uncertainty about the facility to pay all creditors.
It's a defence to show a director has acted in a honest and responsible manner.
However failure to actively take part in the affairs of the company may not supply relief from responsibility since the omission to exercise correct control may amount to recklessness.
Where a company is being wound up and is bankrupt and it has not been able to keep correct books of accounts in accordance with Section 202 C.A. 1990, the Court may declare that any officer or former officer of the company who is in default of this obligation to keep correct books is personally liable for all or such part of the debts of the company as could be specified by the Court where the inability to keep books made a contribution to the insolvency.
Case law shows that the Court will impose responsibility for such quantity of the firm's debt as are directly due to the inability to keep proper books.
The Court might also find each officer of the company who is in charge of the failure guilty of an offence and a fine of up to 12,700 or imprisonment for a term not exceeding five years or both imprisonment and fine can be imposed.
Fraudulent preference is the wrongful favouring of one creditor over others by a company which is not able to pay its obligations.
Demonstrating preference is vital and this is often tough for a liquidator looking to test the payment ; for instance, the payment of a creditor who has simply been terribly diligent about pursuing a debt won't amount to fake preference.
Where a company is put into liquidation, any preference of a creditor in the prior half a year may potentially be put aside as a fraudulent preference.
About the Author
W.O.McGrory and Company was founded by William McGrory in 1974 and has been operating from it’s Drogheda base at Carlington Lodge, Dublin Road, since1979. Bernadette McGrory Farrell and Paul Farrell are now the principal partners in the practice. Mcgrory offers Taxation Services and Audit Services in Drogheda County Louth.
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