Some questions have to be taken into consideration if you want to reactivate or, better said, to activate societies that, a long time ago, were constituted and were forgotten.
Facing this situation when starting a business,
the question is whether they can start working with this company or they have to face a series of obligations inherent to their activation, making it advisable, at least for purely economic reasons, to form a new society.
In order to be able to offer reasons in favor of one or the two options,
it will be necessary to start considering the date on which the already existing but inactive company was constituted. This information will determine whether or not the company is in compliance with existing corporate laws. For example, if we refer to the most common type of company, the limited liability company, all companies incorporated before June 1st 1995 should proceed to adapt their bylaws to the current Law of Limited Liability Companies that entered in force on that date.
This adaptation is therefore essential for the case of intending to start up a company incorporated prior to the entry into force of the current rules and that adaptation involves the payment of fees for the Notary and Registrar.
If you want to reactivate an inactive company,
you only have to communicate to the Tax Administration the update of the business status. This communication is made through the presentation of a census declaration of modification in the Census of Employers, Professionals and Retainers, either printed in the offices of the State Agency of the Tax Administration or via internet.
If you want to present the census declaration in person,
you can request the document when you arrive at the same delegation to be provided and can be filled or downloaded directly from the tax office’s electronic headquarters (without the need for a user certificate) a draft in pdf format already completed and validated, ready for presentation. If, on the other hand, you prefer to submit the census declaration electronically, you will need a recognized electronic certificate.
As stated, this is a simple process provided that the corresponding tax and legal obligations have been fulfilled during the period of inactivity of the company. In this sense, if the books and annual accounts have not been presented in the Mercantile Registry, they must be presented before reactivating the company. For instance, suppose that we formed a company in the year 2000 and that we do not proceed to present the accounts of the exercises that run from then until the present moment. However, the fact of having omitted to comply with this obligation will not allow us to register any document until such situation is regularized. And it will not be enough to deposit the accounts of the last years, but we will be obliged to present the accounts of all the exercises that have passed since its establishment. This means that we must regularize the accounting of the company, although the accounting notes are limited to a little more than those of the constitution, because only from this accounting can the annual accounts be drawn up.
Due to the failure to present the books and annual accounts,
the first sanction consists of the closing of the Mercantile Register, which is resolved by presenting all the documentation that should have been submitted during the period of inactivity. There is also a penalty of 1,200 to 60,000 euros, depending on the size of the company.
The same is true of the corporate tax return: if annual liquidations have not been submitted, they can be submitted after the mandatory dates, before the activation of the company.
f the declarations not submitted do not cause an economic damage to the Public Treasury, which is more than probable, since the company is inactive, the penalty is a fixed pecuniary fine of 200 euros for each declaration not submitted (taking into account the limitation period of the tax obligations set in 4 years), although, if they are presented after the deadline without prior notice, the fine is left at 100 euros for each statement filed after the deadline.
In summary, before being able to use an existing company,
it is necessary to check the date of its constitution and, depending on the same, to determine whether or not it is necessary to regularize its registration status. If you have to adapt the statutes, you must take into account the fees of a lawyer, in addition to the expenses of Notary and Registry of Companies. It must also proceed with the deposit of accounts and pay the fees of the Mercantile Registry, in addition to the expenses of legitimating the signature of the person certifying the approval of the accounts of each fiscal year.
It will also have to be assessed whether it is necessary to re-elaborate the accounts in order to be able to present the tax returns that may be pending and, if this is the case, must provide for the fees of the advisors to whom these tasks are entrusted.
It is possible that regularizing the situation of an existing society is more expensive and involves more time than starting its activity constituting a new society.
Jose Ángel Marrero
