Resolution of the Directorate General of Registries and Notaries (DGRN) of March 15, 2016.
The question of whether a commercial company not legally required to have its annual accounts audited is obliged to deposit them accompanied by an audit report when, on a voluntary basis, it has proceeded to designate and register in the Commercial Registry the appointment of an auditor, is a matter that has raised quite a few controversies.
The two positions on this issue have been, on the one hand, that which has considered that once an auditor has been appointed (whether voluntarily or by legal obligation) there is an obligation to file the annual accounts accompanied by an audit report (Resolutions of the DGRN of 25/08/2005 and 16/05/2007 and some judicial pronouncements), while the other position has understood that the obligation to file audited accounts only arises when the company is legally obliged to submit its accounts to an audit, even if it has voluntarily appointed an auditor in the Commercial Registry (Resolutions of the DGRN of 6/07/2007, 10/07/2007 and 8/02/2008 and some judicial pronouncements).
And it is precisely on this issue that the very recent Resolution issued by the DGRN on March 15, 2016 and published in the Official State Gazette on April 6, 2016, addresses this matter
The factual premise of the case is as follows: “Limited to the first of the defects noted by the Mercantile Registrar in her note of defects, this file is limited to clarifying whether the annual accounts of a public limited company, not required to have its accounts audited, which voluntarily appointed an auditor for three years, said appointment being registered in the Mercantile Registry, can be filed when the accounts are not accompanied by the report of the appointed auditor.”, that is, a public limited company not legally required to submit its accounts to an auditor's report, which for the purposes of article 303 of the Capital Companies Law (capital increase charged to reserves) decided to appoint an auditor for the sole purpose of verifying the company's balance sheet in order to proceed to execute that operation.
And the answer that the DGRN offers to this question is "(...) the need to accompany the audit report when the company not required to have accounting verification has appointed and registered a voluntary auditor", making it irrelevant for the same whether the appointment of the auditor was due to the need to comply with a legal obligation or a voluntary decision of the company.
The legal basis on which the DGRN bases its pronouncement (in addition to a series of previous resolutions of the DGRN itself) is constituted by the new wording of article 279 of the Capital Companies Law (LSC), in force since January 1, 2016, which literally establishes in its final paragraph "The directors shall also present the management report, if it is mandatory, and the auditor's report, when the company is obliged to an audit by a legal provision or this has been agreed at the request of the minority or voluntarily and the appointment of auditor has been registered in the Commercial Registry.".
Consequently, given that the DGRN has ruled on this matter so recently, it remains to be seen how the various Commercial Registries will react to this issue. If they decide to apply the DGRN's new doctrine, the consequence will be that every company that has an auditor registered in the Commercial Registry (whether by legal obligation or by voluntary decision) must submit its annual accounts to an auditor and provide the audit report along with the annual accounts for their effective filing.
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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