On 15 October 1999, The Gibraltar House of Assembly, passed the Companies (Accounts) Ordinance which implements the 4th Company Law Directive of the European Union (EU) and also the Companies (Consolidated Accounts) Ordinance which implements the 7th Company Law Directive of the European Union (EU).
As you may be aware, Gibraltar has a special status within the EU, in that it is an EU Territory (Gibraltar was included in the UK's Treaty of Accession) but is not part of the Customs Union and Common Agricultural Policy. The EU holds the UK responsible for Gibraltar and consequently the UK put pressure on the Gibraltar Government to pass the two directives, which originated in 1978, into law. In addition the Gibraltar Government has passed various EU directives into law to enable it to "passport" its financial products throughout the EU via the UK. To date, as a result of the high standard of regulation, they have been successful with Insurance products and the UK is currently reviewing the position with regard to Investment products. The implementation of the 4th and 7th directives is one more step to achieve this.
Furthermore the OECD has stated that one of the factors to identify "tax havens" is a lack of publically available information. Gibraltar is keen to ensure that it becomes a premier offshore jurisdiction and thus avoid any sanctions sponsored by the OECD and major countries.
The Ordinances require the delivery of annual audited accounts to the Registrar of companies. The format of the accounts and the accounting principles are specified in the Ordinances and conform, in most cases, to normal UK practice. There are various exemptions available to small and medium sized companies. The first accounts filed do not require comparative figures for the preceding year.
TO WHOM DOES IT APPLY
The ordinances apply to
- all companies limited by shares or guarantee . (with the exception of non-profit making companies, licensed banks and insurance companies)
- accounts of the company in respect of each financial year beginning on or after 1st April, 2000
Small companies are defined as small if they satisfy at least two of the following conditions for the financial year:
- Net Turnover (after discounts, turns etc.) did not exceed £4.8 million
- Balance Sheet Total (Fixed and Current Assets) did not exceed £2.4 million
- Average number of employees did not exceed 50
Small companies are required to file an abridged form of the Balance sheet with certain notes and signed by two directors (or one, if a sole director).
The accounts of small private companies do not need to be audited, unless they are trading in Gibraltar and consequently required to file audited accounts with the Commissioner of Taxes.
Small Public companies must deliver full audited accounts.
Medium companies are defined as medium if they satisfy at least two of the following conditions for the financial year:
- Net Turnover (after discounts, turns etc.) did not exceed £19.2 million
- Balance Sheet Total (Fixed and Current Assets) did not exceed £9.6 million
- Average number of employees did not exceed 250
Medium companies are required to file the Balance sheet and Profit and Loss Account (an abridged form of the profit and loss account can be filed) accompanied by notes to the accounts (there are certain exemptions with regard to the notes) and signed by two directors (or one, if a sole director).
Medium Public companies must deliver full audited accounts.
Main provisions are:
- Parent companies must prepare both individual and group accounts
- Applies to companies limited by shares or guarantee which hold the majority of voting rights (over 50%) or have the right to exercise "a dominant influence" over another company
- Does not apply to small or medium sized groups (same definition as for individual companies)
- Exemption where the parent is itself a wholly owned subsidiary of another EEA (European Economic Area) company preparing 7th directive consolidated accounts.
- Trustee and Nominee companies holding shares for a third party are exempted.
- Shares held as security are treated as held by the person providing the security.
TIMETABLE AND PENALTIES
The accounts must be delivered to the Registrar within:
- 13 months from the end of the relevant year
- or 18 months from the date of incorporation
- 10 months from the end of the relevant year
- or 13 months from the date of incorporation
If the accounts are not filed, then the company and every officer will be subject to a fine which is currently set at £100 and is raised 6 months after the due date and must be paid within 1 month.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.