Failure to file annual accounts in the action for liability for corporate debts.

One of the prominent challenges that afflicts our Spanish corporate system is the information asymmetry that affects the creditor in mercantile and commercial relations. When we speak of information asymmetry we are referring to the time lag in the publication of the annual accounts of a company with which one wishes to enter into a contract.

As provided for in the Capital Companies Act (LSC), from the close of the financial year, i.e., under normal conditions, December 31, the administrator has 3 months (until March 31) to prepare the annual accounts of the company (art. 253 LSC). Once the annual accounts have been prepared, a general meeting of shareholders is required, in accordance with article 164 LSC, to approve the annual accounts prepared by the administrator within 6 months of the end of the financial year, i.e. until June 30. Once they have been approved by the meeting, the administrator has an additional month, until July 31, to deposit them in the Commercial Registry in order to publicize them to third parties who wish to contract with the company in the commercial trade (article 281 LSC).

After reviewing the whole process, we can observe that, under normal conditions, there is an information asymmetry of approximately 8 months. This implies that, under normal conditions, if a company plans to enter into a contract with another company, in order to evaluate the solvency and payment capacity of the future debtor company, it will only have access to the annual accounts of the previous year, provided that the obligation to deposit the annual accounts with the Commercial Registry has been complied with in due time.

The Capital Companies Law allows, by virtue of Article 367, the administrator who fails to comply with his duties imposed in Article 365 LSC to be held jointly and severally liable for the corporate debts, provided that at the time of contracting with the creditor the company was in a situation of dissolution due to qualified losses, that is, losses that would have reduced the assets to an amount lower than half of the capital stock.

The second paragraph of article 367 LSC allows the presumption that the corporate obligations are subsequent to the appearance of the cause for dissolution, so that the burden of proof falls on the administrator to prove that the corporate debt is prior in order to be exonerated from liability. But this legal provision presupposes that the proof of the concurrence of the qualified losses will correspond, in a first moment to the corporate creditor. The only evidence to which the creditor can resort are the annual accounts deposited by the debtor in the Commercial Registry.

But, what happens in those cases in which the debtor company has not deposited its annual accounts with the Commercial Registry?

The creditor's burden of proof in such cases is impossible to say the least, since it does not have the necessary accounting information to prove the cause of dissolution due to qualified losses and all this due to the lack of compliance with the duties of the administrator as far as the deposit of the accounts is concerned.

It is for this reason that the recent jurisprudential doctrine of the Supreme Court in its judgments 94/2024, of January 25 and 275/2024, of February 27 becomes relevant and has come to recognize that “when the company has not deposited the accounts in the Mercantile Registry, and there are indications that it is in this situation of losses, for example by the de facto closure or by the generalized non-payment of credits, in these cases the concurrence of the cause of dissolution can be presumed”.

Likewise, it adds “it is the non-compliance by the administrator of the duty to prepare the accounts that prevents knowing with certainty if there was already a situation of losses when the debt was contracted” and continues“the lack of presentation of the accounts does not allow to presume the paralysis of the company, nor the impossibility of compliance with the corporate purpose, although it can be taken into account to prove the equity deficit or the corporate inactivity, inasmuch as there is a reversal of the burden of proof and it will be the defendant who must prove that there is no situation of imbalance”.

Therefore, although the failure to file the annual accounts is not considered a cause of dissolution, nor does it in itself determine the obligation of the administrators to respond for the corporate debts due to the concurrence of the cause of dissolution for qualified losses, it can serve as an indication to prove such losses. Even more so when, once the lack of presentation of annual accounts has been ascertained, the administrator of the debtor company does not provide the annual accounts that would allow him to prove the absence of such qualified losses. All this because, it cannot be denied that, in view of the omissive attitude and the breach of the legal duties of the administrator, it is impossible to know the situation of the debtor company.

Maite Blas Janssens
Illeslex Abogados

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