CIRCULAR ON FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015

Transcription

1 CIRCULAR ON FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 This Circular highlights the amendments brought by the Finance (Miscellaneous Provisions) Act 2015 ( Finance Act ) in relation to the global business sector. The Finance Act provides for the implementation of measures announced in the Budget Speech 2015 and for matters connected, consequential or incidental thereto. The purpose of this Circular is to provide a summary of the major relevant amendments made to the following legislations that may affect the global business industry: I. Companies Act 2001 II. Foundations Act 2012 III. Insolvency Act 2009 IV. Limited Partnership Act 2011 I. COMPANIES ACT 2001 This Act is, inter alia, amended to allow for electronic filing of documents and electronic payment of fees falling under the administration of the Corporate and Business Registration Department; and correction of typographical or clerical errors in documents filed with the Registrar of Companies without the need for companies to make multiple filings. This Act is further amended to extend eligibility to act as Company Secretary to any member of a recognised accountancy body or person who possesses equivalent qualifications. The Act also provides the Registrar, for several processes as listed below, to issue certificates as it may determine rather than in prescribed form. S 2 (1) Electronic Filing A new definition Companies and Businesses Registration Integrated System (CBRIS) has been added to section 2 (1) of this Act, which means (for the purposes of Companies Act, the Business Registration Act, the Foundations Act and the Limited Partnerships Act), the electronic system operated by the Registrar for the filing of particulars, financial statements and other documents; and the payment of fees. 1

2 It is to be noted that the Finance Act amends, inter alia, the Electronic Transactions Act, the Inscription of Privileges and Mortgages Act, and the Transcription and Mortgages Act respectively to cater for the coming into operation of Phase 2 of the e-registry Project at the Registrar-General s Department as from 01 st July S 12A Rectification on Registrar s initiative or on request The Registrar may, on his own initiative or on request, rectify in his registers any typographical or grammatical mistake and the Registrar shall proceed with such a rectification without any further filing. (cc) S 35 (1) Name of Company For name of companies, no company including a foreign company shall be registered under a name which is identical with that of an existing company, or statutory corporation, or so nearly resembles that name as to be likely to mislead, except where the existing company or statutory corporation is in the course of being dissolved and signifies its consent in such manner as the Registrar requires. The words or so nearly resembles that name as to be likely to mislead has been deleted in the above section. (dd) S 165 (1) Qualifications of secretary Every secretary of a public company or of private company other than a small private company or a company holding a Category 2 Global Business Licence shall be a law practitioner, a legal consultant, a law firm, a qualified auditor, a member of the Institute of Chartered Secretaries and Administrators of the United Kingdom or a member of the Chartered Institute of Management Accountants of United Kingdom. The words a qualified auditor has been deleted and replaced by the words a member of one of the bodies referred to in section 198(1). (ee) S 24 (c) certificate of incorporation in the prescribed form S 268 Conversion of public companies and private companies S 276 Registration of Foreign Companies and S 299 Registration (1) For incorporation of companies, the Act provided that the Registrar issues a certificate of incorporation in the prescribed form. The words the prescribed form have been deleted and replaced by the words such form as the Registrar may determine. 2

3 (2) For conversion of public companies to private companies and vice versa, the Registrar issued to the company a new certificate in the prescribed form confirming the conversion and cancel the previous certificate of incorporation. ` The words in the prescribed form has been deleted and replaced by the words in such form as the Registrar may determine. (3) For foreign companies establishing a place of business or commences to carry on business in Mauritius and for companies incorporated under the laws of any country other than Mauritius, continue as, a company in Mauritius as if it had been incorporated in Mauritius, the Registrar issues a certificate of registration in the prescribed form. In sections 276(3) and 299(1), the words the prescribed form have been deleted and replaced by the words such form as the Registrar may determine. II. FOUNDATIONS ACT 2012 The Finance Act amends this Act to shed light on the removal of foundations from the register of foundations upon winding up. It further amends this Act to facilitate settlement, compounding of offences for foundations. S 42 Voluntary Winding Up This Act currently provides that a foundation can be wound up voluntarily on the occurrence of an event specified in its charter; on the expiry of the period for which it was established; on a unanimous resolution of its Council to that effect; or where the foundation is unable to pay its debts. A new subsection has been added to s42 which provides that where a notice is delivered to the Registrar under subsection (2), the Registrar shall remove the foundation from the register. S 44 Distribution of assets on winding-up A new subsection (5) has been added such that where a notice or an order is filed with the Registrar under subsection (4), the Registrar shall remove the Foundation from the register. 3

4 (cc) S 50A Compounding of Offences (1) Notwithstanding section 50, the Registrar may, with the consent of the Director of Public Prosecutions, compound an offence committed by a person under this Act where the person agrees in writing to pay an amount acceptable to the Registrar not exceeding the maximum penalty imposable under this Act for that offence. For the purpose of paragraph, the Registrar shall chair a committee which shall include 2 other senior officers from his staff designated by him. (2) Every agreement to compound shall be in writing and signed by the Registrar and the person referred to in subsection (1), and witnessed by an officer, and a copy shall be delivered to such person. (3) Every agreement to compound shall be final and conclusive. (4) Where the Registrar compounds an offence in accordance with this section, no further proceedings shall be taken in respect of the offence so compounded against the person. III. INSOLVENCY ACT 2002 The Finance Act now enables this Act to apply to a Private Pension Scheme under the Private Pension Schemes Act and in the Fourth Schedule, it now provides, in the event of the winding up of a private pension scheme, for the distribution of the assets to be effected in accordance with FSC Rules made under the Private Pension Schemes Act This Act is further amended to provide that a petition for the winding up of a company may also be presented by an administrator or the Registrar of Companies. S 2 Interpretation The below definition has been added to s 2 of this Act: Private pension scheme has the same meaning as in the Private Pension Schemes Act. 4

5 S 102 Petition for Winding up S102 (2) provides a list of those who can present a petition to wind up a company by the Court. This amendment stipulates that a petition to wind up a company may be presented by: (ea) the administrator; (f) by inserting, after the word Director, the words or the Registrar of Companies. S102 (5)(j) has been amended such that petition to wind up may be presented where the company or its officers have persistently made default in complying with this Act or the Companies Act. IV. Limited Partnership Act The Registrar of Limited Partnerships is now empowered to issue a Certificate of Current Standing for limited partnerships. The Finance Act amends this Act to facilitate settlement and compounding of offences as is the case for companies. S 70A Certificate of Current Standing (1) At the request of any person, the Registrar shall, where he is satisfied that the name of a limited partnership is on the register, issue a certificate of current standing under his hand and seal certifying that the limited partnership is of current standing. (2) A certificate of current standing under subsection (1) shall contain a statement as to whether the limited partnership (i) has paid all fees and charges due and payable; (ii) has submitted its annual return under section 53; or (iii) is in the process of being dissolved; or any proceedings to remove the limited partnership from the register have been instituted. 75A. Compounding of offences The following clauses on compounding of offences have been added as a new section after section 75. 5

6 (1) Notwithstanding section 75, the Registrar may, with the consent of the Director of Public Prosecutions, compound an offence committed by a person under this Act where the person agrees in writing to pay an amount acceptable to the Registrar not exceeding the maximum penalty imposable under this Act for that offence. ` For the purpose of paragraph, the Registrar shall chair a committee which shall include 2 other senior officers from his staff designated by him. (2) Every agreement to compound shall be in writing and signed by the Registrar and the person referred to in subsection (1), and witnessed by an officer, and a copy shall be delivered to such person. (3) Every agreement to compound shall be final and conclusive. (4) Where the Registrar compounds an offence in accordance with this section, no further proceedings shall be taken in respect of the offence so compounded against the person. The Finance Act has been gazetted on the 14 May This Circular provides above in a first section an overview of the relevant amendments in the above-mentioned laws and in its second section, the relevant extracts of the laws, as amended by the Finance Act. 03 June 2015 [The materials and information contained in this Circular are for general information purposes only, are not intended to constitute legal advice and should not be relied on or treated as a substitute for the same. The authoritative version of the Finance (Miscellaneous Provisions) Act 2015 is the one published in the Government Gazette of Mauritius] 6