1. What is ‘compulsory liquidation’?

Compulsory liquidation of a company is when the company is ordered by a court to be wound up.

2. Which courts can order a compulsory liquidation?

The Court of Session, or Sheriff Court with the appropriate jurisdiction, may order the winding-up of a company. This may be, for example, on the petition of a creditor or creditors on the grounds that the company cannot pay its debts.

The court may also order the company to be wound up on the petition of:

• the company itself;
• the company’s directors or one or more members;
• the Secretary of State for Trade and Industry; or
• the Financial Services Authority (formerly the Securities and Investment Board).

In the case of a European company (SE) registered in GB, the Secretary of State may petition the Court for a winding up order on the grounds that it appears that the SE does not have both its head office and registered office in GB. For more information on SEs, please see our information, ‘The European Company: Societas Europaea (SE)’.

3. Must the petition be advertised?

Unless the court directs other arrangements, the petition must be advertised in the Edinburgh Gazette.

4. What appears on the company record held by Companies House?

If the petition is successful, the company must send Form 4.2 (Scot) and a copy of the winding-up order to the Registrar and AIB straightaway and it will be placed on the company’s public record.

The petition itself is not presented to the Registrar so it will not appear on the public records.

5. Who acts as the liquidator when an order is made to wind up the company?

A provisional liquidator may be appointed after the petition is presented. If a winding up order is made, an interim liquidator is appointed. Both the provisional and interim liquidator must notify AIB of their appointments.

6. What are the duties of the interim liquidator?

Within 28 days of the appointment, the interim liquidator investigates the company’s affairs and will call meetings of creditors and contributories (that is, those people liable to contribute to the assets of a company in the event of it being wound up). The meetings appoint the official liquidator who must notify AIB within 7 days. If no liquidator is appointed at the meetings, the court appoints a liquidator.

The liquidator must send to AIB a statement of receipts and payments for the first 12 months of liquidation and thereafter every 6 months until the winding up is complete.

7. What happens when the winding-up is complete?

When the Registrar and AIB receive notice from the liquidator of the final meeting that winding-up is complete, the Registrar will register it and publish its receipt in the Edinburgh Gazette.

Unless the Court directs otherwise, the company will be dissolved three months after the notice was registered at Companies House.

Tags: compulsory liquidation

1. Who can apply to have a company struck off the register?

A private company that is not trading may apply to the Registrar to be struck off the register. It can do this if the company is no longer needed. For example, the active directors may wish to retire and there is no-one to take over from them; or it is a subsidiary whose name is no longer needed; or it was set up to exploit an idea that turned out not to be feasible.

The procedure is not an alternative to formal insolvency proceedings where these are appropriate, as creditors are likely to prevent the striking off. Even if the company is struck off and dissolved, creditors and others could apply for it to be restored to the register.

A private company can apply to be struck off if, in the previous three months, it has not:

• traded or otherwise carried on business;
• changed its name;
• for value, disposed of property or rights that, immediately before it ceased to be in business or trade, it held for disposal or gain in the normal course of its business or trade (for example, a company in business to sell apples could not continue selling apples during that three-month period but it could sell the truck it once used to deliver the apples or the warehouse where they were stored); or
• engaged in any other activity except one necessary or expedient for making a striking-off application, settling the company’s affairs or meeting a statutory requirement (for example, a company may seek professional advice on the application, pay the costs of copying the Form 652a, etc). However, a company can apply for striking off if it has settled trading or business debts in the previous three months.

A company cannot apply to be struck of if it is the subject, or proposed subject, of:

• any insolvency proceedings (such as liquidation, including where a petition has been presented but has not yet been dealt with); or
• a Section 425 scheme (that is a compromise or arrangement between a company and its creditors or members).

2. What should I do before applying?

There are safeguards for those who are likely to be affected by a company’s dissolution. If your company has creditors, members etc, you are advised to warn all the people listed in question 4, before applying, as any of them may object to the company being struck off. Any loose ends - such as closing the company’s bank account, or the transfer of any domain names - should be dealt with before you apply.

It is also advisable to notify any other organisation or party who may have an interest in the company’s affairs, otherwise they might later object to the application. Examples include local authorities, especially if the company is under any obligation involving planning permission or health and safety issues, training and enterprise councils and government agencies.

From the date of dissolution, any assets held by a dissolved company will belong to the Crown. The company’s bank account will be frozen and any credit balance in the account will be passed to the Crown.

3. How do I apply?

The Registrar will provide Form 652a on request. Forms are also available from the sources listed on the back of this information.

The form must be signed and dated by:

• the sole director, if there is only one;
• by both, if there are two; or
• by the majority, if there are more than two.

You must give the name, address and telephone number of the person Companies House should contact about the application. You should then send the completed form, with the £10 fee, to the Registrar of Companies, Companies House, 37 Castle Terrace, Edinburgh EH1 2EB. Cheques must be payable to ‘Companies House’ and the company number written on the reverse.

4. Who must I inform?

Within seven days after sending Form 652a to the Registrar, you must provide copies of the form to the following:

• members, (usually the shareholders);
• creditors (including all contingent and prospective creditors) such as banks, suppliers, former employees if they are owed money by the company, landlords, tenants (for example, where a bond is refundable), guarantors and personal injury claimants. Also, you must notify appropriate offices of the Inland Revenue, Department for Work and Pensions (DWP) and Customs & Excise if there are outstanding, contingent or prospective liabilities;
• employees;
• managers or trustees of any employee pension fund; and
• any directors who have not signed the form.

Anyone who becomes a member, creditor etc, after the application must also be sent a copy of the form within seven days of doing so.

All VAT-registered companies must notify the relevant VAT office (Finance Act 1985).

5. How should I inform the various parties?

A copy of the Form 652a should be delivered to, left at, or posted to them at:

• the last known address (if an individual); or
• the principal/registered office (if a company or partnership).

It is advisable to keep proof of delivery or posting.

6. How is the form registered?

The Registrar will check the form and, if acceptable, put it on the company’s public record. An acknowledgement will be sent to the address shown on the form. The company will also be notified at its registered office address to enable it to object if the application is bogus.

7. Can anyone object to dissolution?

Any interested party may object.

8. How and why can they object?

Objections must be in writing and sent to the Registrar of Companies with any supporting evidence, such as copies of invoices that may prove the company is trading. Reasons for objecting include:

• the company has broken any of the conditions of its application (for example, it has traded, changed its name or become subject to insolvency proceedings) during the three-month period before the application, or afterwards;
• the directors have not informed interested parties;
• any of the declarations on the form are false;
• some form of action is being taken, or is pending, to recover any money owed (such as a winding-up petition or action in a small claims court);
• other legal action is being taken against the company;
• the directors have wrongfully traded or committed a tax fraud or some other offence.

9. What if I change my mind and want to withdraw my application?

Directors must withdraw the application using Form 652c if a company ceases to be eligible for striking-off. This may be because the company:

• trades or otherwise carries on business;
• changes its name;
• for value, disposes of any property or rights except those it needed in order to make or proceed with the application (for example a company may continue the application if it disposes of a telephone which it kept to deal with enquiries about its application);
• becomes subject to formal insolvency proceedings or makes a Section 425 application (a compromise or arrangement between a company and its creditors);
• engages in any other activity, unless it was necessary or expedient in order to: make or proceed with a striking-off application; conclude those of its affairs that are outstanding because of what has been necessary or expedient to make or proceed with an application (such as paying the costs of running office premises while concluding its affairs and then finally disposing of the office); or comply with a statutory requirement.

Form 652c can be completed and signed by any director. The form must be sent to Companies House.

10. What happens when the Registrar accepts a Form 652a application?

The Registrar will advertise and invite objections to the proposed striking-off in the Edinburgh Gazette. The company will be struck off the register not less than three months after the date of this notice if the Registrar sees no reason to do otherwise and the application has not been withdrawn. The company will be dissolved when the Registrar publishes a notice to that effect in the Gazette. (At the time of striking-off, a letter will be issued to the contact name on Form 652a confirming the proposed date of dissolution.)

Anyone convicted of these offences may also be disqualified from being a director for up to 15 years.

11. Do I need to send a fee with Form 652a?

A fee of £10 is payable to cover the cost of providing the service. The fee will not be refunded if the application is rejected or withdrawn after its registration. A further fee will be payable for a new application. Any cheques must be made payable to ‘Companies House’ and the company number written on the reverse.

Tags: voluntary liquidation

1. Can the Registrar strike off a company?

Yes, if it is neither in business nor in operation. The Registrar may take this view if, for example:

• documents have not been received from a company that should have sent them to the Registrar; or
• mail the Registrar has sent to a company’s registered office is returned undelivered.

Before striking a company off the register, the Registrar must inquire whether it is still in business or operation. If he is satisfied that it is not, a notice will be published in the Edinburgh Gazette that the Registrar intends to strike the company off. A copy notice is placed on the company’s public record. If the Registrar sees no reason to do otherwise, the company will be struck off not less than three months after the date of the notice. The company will be dissolved on publication of a further notice stating this in the Gazette. At the date of dissolution any assets held by a dissolved company will belong to the Crown: see question 5. The company’s bank account will be frozen and any credit balance in the account will be passed to the Crown.

2. How can I avoid this action?

If the company is to remain on the register, it is important to reply promptly to any formal inquiry letter from the Registrar and to deliver any outstanding documents. Failure to deliver the necessary documents may also result in the directors being prosecuted.

3. Can I object?

The Registrar will take into account representations from the company and other interested parties such as creditors.

4. How does the Registrar’s intention to strike off a company appear in the Edinburgh Gazette?

Notices are published in the Edinburgh Gazette, which is published twice weekly. Copies are available from:

The Edinburgh Gazette, 73 Lothian Road, Edinburgh, EH3 9AW
web site: www.gazettes-online.co.uk
telephone: 0870 600 5522

5. What happens to the assets of a dissolved company?

From the date of dissolution any assets held by a dissolved company will be ‘bona vacantia’. This means they belong to the Crown. The company’s bank account will be frozen and any credit balance in the account will be passed to the Crown.

Enquiries about bona vacantia property should be addressed, as appropriate, to:

The Queen’s and Lord Treasurer’s
Remembrancer (Q & LTR)
Crown Office
25 Chambers Street
Edinburgh EH1 1LA

Tags: defunct company

The Registrar cannot restore a company to the register without a Court Order. When the Registrar receives an office copy of the Court Order for restoration, a company is regarded as having continued in existence as if it had not been struck off and dissolved.

1. Who can apply to have a company restored to the register?

For companies struck off following a Form 652a application: any of the parties who must be notified of the application can apply to the Court within 20 years of dissolution for the name of the dissolved company to be restored to the register. The Court may order restoration under section 653 of the Companies Act 1985 if it is satisfied that:

• the person was not given a copy of the company’s application;
• the company’s application involved a breach of the conditions of the application; or
• for some other reason it is just to do so.

The Secretary of State may also apply to the Court for restoration if this is justified in the public interest.

For companies struck off at the instigation of the Registrar: the company, or a member or creditor of it, can apply to the Court for restoration within 20 years of the dissolution. When a company applies for its own restoration, a member of the company must also be an applicant to give any necessary undertakings to the Court.

Where a company is dissolved: the liquidator or any other interested party such as a creditor can apply to the Court for the dissolution to be declared void. In most cases an application must be made within two years of dissolution, but it can be made at any time if its purpose is to bring proceedings against a company for:

• damages for personal injuries including any sum under Section 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 (funeral expenses); or
• damages under the Fatal Accidents Act 1976 or the Damages (Scotland) Act 1976.

2. Where do I apply for a Court Order for restoration?

You apply to the court with jurisdiction to wind up the company. In all cases, this is the Court of Session. Alternatively, for a company whose paid-up capital does not exceed £120,000, you can apply to the Sheriff Court in the sheriffdom in which the company has its registered office.

3. How do I serve documents?

The petition should be served on:

The Lord Advocate
Crown Office
25 Chambers Street
Edinburgh EH1 1LA
DX ED310

and:

The Registrar of Companies
Companies House
37 Castle Terrace
Edinburgh EH1 2EB
DX: ED235 Edinburgh 1
LP – 4 Edinburgh 2

The Registrar will accept delivery by post (recorded delivery is recommended) or by hand at Companies House Edinburgh during normal office hours.

An agent may represent the Registrar of Companies and/or the Lord Advocate at the hearing.

4. What evidence must I give?

The Court will require evidence covering:

• service of the petition on the Registrar of Companies and the Lord Advocate.

The Court will usually require background information on the company. This can be provided in the petition (its form is prescribed in the rules of court) and may include:

• when the company was incorporated and the nature of its objects (a copy of the certificate of incorporation and the memorandum and articles of association should be attached);
• its membership and officers;
• its trading activity and, if applicable, when it stopped trading;
• an explanation of any failure to deliver accounts, annual returns or notices to the Registrar of Companies;
• details of the striking-off and dissolution;
• comments on the company’s solvency;
• any other information that explains the reason for the application.

The Registrar will provide information to assist in an application to the Court. Before the Court hearing, the Registrar will normally ask for:

• delivery of any statutory documents to bring the company’s public file up to date.
• the correction of any irregularities in the company’s structure.

5. Are there costs or penalties?

Yes. The applicant (s) may be expected to meet the costs of the Registrar in relation to the restoration. The company may also be required to meet the Registrar’s expenses and must normally pay any statutory penalties for late filing of accounts delivered to the Registrar outside the period allowed by the Companies Act 1985. The penalties that may be due are:

• unpaid penalties outstanding on accounts delivered late before the company was dissolved; and
• penalties due for accounts delivered on restoration, if the accounts were overdue at the date the company was dissolved.

The level of any late filing penalty depends on how late the accounts are when the Registrar receives them, as shown in the table below. In the case of accounts delivered on restoration, the period during which the company was dissolved is normally disregarded. For example, a set of accounts that should have been delivered 2 months before a private company was dissolved are normally regarded as 2 months late if they are delivered on restoration - the late filing penalty is still £100.

Tags: register restoration

 An annual return is a snapshot of general information about a company’s directors and secretary, registered office address, shareholders and share capital.If you file the annual return late, or not at all, the company and its director (s) and secretary can be prosecuted.

You will find the relevant law in the Companies Act 1985 (as amended in 1989 and 2006).

1. Which companies must send an annual return to Companies House?

Every company must deliver an annual return to Companies House within 28 days of its made-up date. A company’s director (s) and secretary are responsible for ensuring that the annual return:

1. is delivered to Companies House within 28 days after the anniversary of incorporation or the anniversary of the made-up date of the last annual return; and
2. gives a true picture of the management structure and capital (if applicable) of the company at the made-up date.

2. What is an annual return (Form 363)?

An annual return is a snapshot of certain company information at the made-up date (see question 3). It is separate from a company’s annual accounts. An annual return must contain the following information:

1. the name of the company;
2. its registered number;
3. the type of company it is, for example, private or public;
4. the registered office address of the company;
5. the address where certain company registers are kept if not at the registered office;
6. the principal business activities of the company (see Principal Business Activities);
7. the name and address of the company secretary;
8. the name, usual residential address, date of birth, nationality and business occupation of all the company’s directors;
9. the date to which the annual return is made-up (the made-up date).

And if the company has share capital, the annual return must also contain:

1. the nominal value of total issued share capital;
2. the names and addresses of shareholders and the number and type of shares they hold or transfer from other shareholders.

Note: Share capital requirements are explained in questions 8 to 11 below.

In some cases there may be information on related undertakings annexed to the annual return.

3. What is the made-up date?

This is the date at which all the information in an annual return must be correct. The made-up date is usually the anniversary of:

1. the incorporation of the company; or
2. the made-up date of the previous annual return registered at Companies House.

4. When must the annual return be delivered to Companies House?

All annual returns must be delivered to Companies House within 28 days of the made-up date given on the form. There is an annual document-processing fee of £30 or £15 for users of our Software Filing or WebFiling services must be sent with the annual return. For companies that file a paper annual return make the cheque payable to ‘Companies House’ and write the company number on the reverse.

Please note: Currently we estimate that 2% of companies on the register are unable to use our WebFiling service. This includes companies that wish to file using Welsh. Companies House is presently working towards enabling these companies to file their returns electronically.

5. Where do I get an annual return?

Companies House will write to every company at its registered office when the annual return is due to be filed.

Companies may then file their annual return electronically using the Webfiling service or a suitable software package.

Companies that choose to file a paper annual return, which is pre printed with information from the public record, may request this form by telephoning Companies House on: 0870 3333636.

6. Completing the shuttle annual return Form 363s

For companies filing electronically there are on-screen instructions to help complete the return and for those filing on paper further details are given with the form.

The shuttle annual return can be used to notify changes to:

1. the company’s registered office;
2. the address at which the company’s register of members is kept (if applicable);
3. the address at which the company’s register of debenture holders (if any) is kept;
4. the principal business activities of the company;
5. the details; for example, change of the usual residential address, of any company secretary or director and, if the information has been pre-printed, of any shareholder;
6. the date a company officer resigned.

7. Completing the annual return Form 363a

As an alternative to the shuttle annual return, you can use the annual return Form 363a. This form does not include any pre-printed company information. It is normally completed by companies who use secretarial software packages.

All the details you give on Form 363a should confirm the company information already held on the Companies House public record at the made-up date - except shareholder information. The details you should give are stated under question 2 of this guide. You may only change the details by sending one or more of the following statutory form (s) with the document:

1. change of registered office address. Use Form 287;
2. appointment of company director or secretary. Use Form 288a;
3. change of details, for example, the address of a company officer. Use Form 288c;
4. resignation of company officers. Use Form 288b;
5. notification or change of address where register of members is kept. Use Form 353;
6. notification or change of address of location of register of debenture holders. Use Form 190;
7. allotment of new shares. Use Form 88(2);
8. change to the company’s total share capital. (See question 9.)

Note: Share capital requirements are explained in questions 8-11.

8. What information does Companies House require about share capital?

This applies to every company with a share capital. If a company has converted shares into stock, give the corresponding information in relation to that stock, stating the amount of stock instead of the number and nominal value of the shares.

For most companies with share capital, the shuttle annual return (Form 363s) will include pre-printed information about the company’s total issued share capital. If the information is not pre-printed or if you use Form 363a, please state for each class of issued share:

1. the name of the class of each type of share. For example, ordinary or preference shares;
2. the total number of shares issued to shareholders at the made-up date of the return;
3. the total nominal value of issued shares of that class at the date of the return.

Note: The total nominal value of the shares is the total nominal or face value of the shares excluding any premium.

9. How do I tell Companies House if the share capital details are incorrect?

If a company has changed its share capital by:

1. altering its structure; and/or
2. increasing its total nominal value;
3. then you must complete and send one or more of the following forms to Companies House with the annual return:
4. Form 122: Notification of consolidation, division, sub-division, redemption or cancellation of shares, or conversion or re-conversion of stock into shares;
5. Form 123: Notification of increase in nominal capital; *
6. Form 128(1): Notification of rights to allotted shares that are not stated in the company’s memorandum or articles; *
7. Form 128(3): Notification of variation of rights to allotted shares that are not stated in the company’s memorandum or articles; *
8. Form 128(4): Notification of assigning a new name to any class of share other than by amendment of the company’s memorandum or articles; *
9. Form 169: Return by company purchasing its own shares.

* A copy of the appropriate company resolution authorising the change is also required.

10. When do I have to list all company members?

Whichever type of annual return form is used, a company with share capital must provide a ‘full list’ of all its members on:

1. its first annual return following incorporation;
2. every third annual return after it has provided a full list.
3. The intervening two annual returns need only report changes to shareholder information that have taken place during that year - that is shares transferred and particulars relating to shareholders who have become members or ceased to be members.
4. A ‘full list’ annual return must contain the following information about a company’s shareholders:
5. the name and address of every shareholder of the company at the made-up date;
6. the name and address of every shareholder who has ceased to be a member of the company since the made-up date of the previous annual return (or in the case of a first return, since the incorporation of the company);
7. the number of shares of each class held by each member of the company at the made-up date of the annual return;
8. the date of registration and the number of shares of each class transferred by each member or past member since the made-up date of the previous annual return (or in the case of a first return, since the incorporation of the company).

On a shuttle annual return Form 363s, Companies House will pre-print the individual shareholder information where the details are available and if a company has 20 or fewer shareholders. Use the space provided alongside the details of each shareholder to make any necessary amendments to the information.

Remember: A company may issue additional shares provided that Companies House is or has been notified of the allotment of the shares on Form 88(2)

11. Are there other ways of providing individual shareholder details?

By prior arrangement, companies may provide shareholder information to Companies House in a format other than on the form provided, for example, on floppy disk or CD-ROM.

Tags: annual returns