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Latest News

Ethics and Governance

From a governance perspective, COVID-19 will test the robustness of our legislation and our ability to take a more technological, and perhaps modern, approach, writes Claire Lord. The Irish Government recently announced additional measures to protect citizens by delaying the spread of COVID-19. One of these measures is social distancing, which requires individuals to keep a two-metre space between them and other people. This measure and the increasing restrictions on international travel is making it difficult for Irish companies to hold ‘in-person’ board meetings and to proceed with shareholder meetings, particularly annual general meetings (AGMs), in the usual way. Against this backdrop, what can companies do to allow business to proceed so as to comply with the law while protecting the health of its directors, employees and shareholders? Board meetings Generally speaking, the board of an Irish company can meet ‘virtually’. This means that board meetings can be conducted by telephone, video conference or a similar facility. For a virtual board meeting to be properly convened, all directors must be able to hear each other and speak to each other. At a virtual board meeting, the quorum is made up of those participating in the meeting. All participating directors are entitled to vote in the usual way and the location of the meeting, consequent on social distancing requirements, is likely to be the location of the chair. The board of an Irish company can also usually pass resolutions in writing. For a written resolution to be valid, it must be signed by all directors of the company at that time. A written resolution takes effect when the last signature is collected. A written resolution can be signed in counterpart and can be circulated and signed electronically. The fully signed version must be retained with the minute book of the company. The written resolution procedure can be used even if one of the directors is not permitted to vote. Where this is the case, the remaining directors sign the resolution and note the name of the director who is not entitled to vote and the reason why. It is always recommended that a directors’ meeting is held where the business to be transacted is contentious, or if it is anticipated that the business to be approved will not be supported unanimously. Directors must also meet where they are required to make a declaration of the company’s solvency as part of the summary approval procedure to approve certain restricted activities. Where these circumstances exist, meeting “virtually” is sufficient. The board of a company must also consider the location of its board meetings or decision-making where it is important from a tax residency perspective for them to be able to demonstrate that the company is managed and controlled in Ireland. Shareholder meetings Companies with AGMs due to occur in the months ahead should consider how best to proceed with their AGMs in a way that complies with the law, and affords shareholders the ability to participate, while observing the Government’s restrictions on mass gatherings. An AGM must have a physical location that is specified in the AGM notice. The quorum for an AGM is determined based on the number of shareholders present in person or by proxy, usually at the physical location of the meeting. Therefore, to avoid a large  number of shareholders attending at the physical location for the meeting, shareholders should be encouraged to appoint a proxy to attend and vote on their behalf. Ideally, shareholders should be encouraged to appoint the same proxy where possible (while always considering how a quorum will be achieved).   While an AGM must have a physical location, a company can permit participation by shareholders at an AGM via technology, once that technology permits shareholders to participate and vote electronically.   Multi-member and single-member private companies limited by shares (LTDs) and single-member companies of other types can dispense with the legal requirement to hold an AGM by opting to carry out the business of the AGM by way of a unanimous written resolution.  Similarly, all company types can pass resolutions in writing.  In the case of LTDs and designated activity companies (DACs), this right applies regardless of any provisions in the company’s constitution.  Similarly, LTDs and DACs can pass majority written resolutions where a particular process is followed. Business as usual? We face significant uncertainty in the months ahead with the spread of COVID-19. Finding ways to conduct business regardless, while protecting the health of others, will test our ingenuity. From a governance perspective, it will allow us to see if our legislation is robust enough to support a more technological and, dare I say it, modern approach.   Claire Lord is a Corporate Partner and Head of Governance and Compliance at Mason Hayes & Curran.

Apr 01, 2020

Covid 19 is causing an unprecedented shock to the global business world.  As well as the business risks, companies and their auditors are facing many practical difficulties in preparing financial statements and conducting audits.  There is a great deal of uncertainty as to how the Covid-19 situation will continue to evolve.  We aim to provide links to relevant up to date advice and guidance and we will monitor developments continually and will update and add material over the coming months.  With input from members in practice dealing with these challenges daily we have developed a number of Frequently Asked Questions on auditing matters that are of particular relevance in the current climate and we will add further information and additional topics as they arise.   Published 30 March 2020  

Mar 31, 2020

The COVID19 legislation provides for the operation of a Wage Subsidy Scheme for employers (section 28 of the Bill as passed by Dáil Éireann).  It has emerged that businesses with significant cash reserves will not necessarily be disqualified from the scheme. During Dáil debates on the legislation the Minister for Finance addressed some of the deputies’ points on employers’ eligibility for the scheme.  Responding to Deputy Michael McGrath’s comments on businesses having cash for operating expenses and investments the Minister said “Deputy Michael McGrath presents the concept that the presence of cash reserves would in some way debar a company from participating in the scheme. I do not believe that will be the case. I think it is very possible that companies will have cash reserves, precisely for the reason the Deputy refers to, that they have costs coming up that they know they need to meet.”   Per Revenue guidance, eligibility for the Scheme will initially be determined largely on the basis of self-assessment and a declaration by the employer concerned.  A key indicator is that there is to be an expected decrease in turnover by 25 per cent for Quarter 2, 2020.  This decrease can be gauged by reference to Quarter 1 2020 for example, or against another reasonable reference period.     The Institute recommends that employers maintain any supporting records which clearly show the negative economic impact to their business arising from COVID-19.  This will simplify the handling of any follow up discussions or checks by Revenue post the crisis.  Examples of the types of documentary evidence are set out in the Revenue guidance.    There has been some commentary regarding the publishing of the names of employers availing of the scheme.  We understand that some businesses may have reservations about this.  However almost every business in the country is affected by the COVID-19 crisis, the list will be published after (and not during) the scheme, and there is precedent for companies which benefit from tax administered schemes such as the EIIS to feature on lists of beneficiaries.  We gather that many Revenue phone services are to be closed for the crisis period but the National Employer Helpline (01 7383638) is being maintained to deal with queries on the COVID-19 Wage Subsidy Scheme.    Read Revenue’s guidance here and Revenue’s FAQ document may be useful. Revenue’s other information and advice for taxpayers and agents is available here.  We will continue to advise all members using the appropriate communication channels as soon as further clarifications and updates are received.  

Mar 30, 2020