New sanctioning regime for non-compliance with the obligation to deposit annual accounts

New sanctioning regime for non-compliance with the obligation to deposit annual accounts

Dear Customer:

Royal Decree 2/2021, of January 12, was recently published, approving the Regulations for the development of Law 22/2015, of July 20, on Audit of Accounts, the eleventh additional provision of which requires a new development of the sanctioning regime for non-compliance with the obligation to deposit the annual accounts. Until now, the regulation of the aforementioned sanctioning regime was established exclusively in article 283 of Royal Legislative Decree 1/2010, of July 2, which approves the consolidated text of the Capital Companies Law.

The notable aspects of the new regulation are the following:

  • Criteria to determine the amount of the penalty applicable in case of non-compliance:

    • The penalty will be 0.5 per thousand of the total amount of the asset items, plus 0.5 per thousand of the sales figure of the entity included in the last declaration presented to the Tax Administration, the original of which must be contribute to the processing of the procedure.

    • In case of not providing the tax declaration mentioned in the previous section, the penalty will be established at 2 percent of the share capital according to the data in the Commercial Registry.

    • In the event that the tax declaration is provided, and the result of applying the aforementioned percentages to the sum of the assets and sales items is greater than 2 percent of the share capital, the penalty will be quantified in the latter reduced by 10 percent.

    • Without prejudice to the above, in any case the minimum penalty will be a fine of 1,200 euros, up to a maximum of 60,000 euros. If the entity, or group of entities, has a turnover greater than 6,000,000 euros, the limit of the fine for each year will be raised to 300,000 euros.

  • Period for resolution and notification of the sanctioning procedure: the period will be six months from the adoption of the initiation agreement, without prejudice to the suspension of the procedure and the possible extension of said total period and the partial periods foreseen for the different steps of the procedure

Likewise, in the tenth additional provision of Royal Decree 2/2021, of January 12, a new collaboration framework is established between the Institute of Accounting and Auditing of Accounts (ICAC) and the General Directorate of Legal Security and Public Faith, to through which commercial registrars may be entrusted with the management and decision proposal on disciplinary proceedings for non-compliance with the duty to deposit accounts.

In short, although it is true that until now our regulations already provided for a sanctioning regime applicable to non-compliance with the obligation to deposit annual accounts, the truth is that its practical application had been residual. However, with this new legal configuration, we could be facing a new scenario that requires interested parties to be inflexible in complying with the obligation.

We remain at your disposal for any questions or clarifications in this regard.

Commercial Department.

In Madrid, February 11, 2021.

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