• A company is a legal person, though artificial in nature, separate from its members whereas a business does not have a separate legal identity from its members. In the case of a business therefore, there is no separate existence distinct from its members.

• A company may be registered with the liability of the members limited by the amount of their unpaid share capital or by guarantee whereas the personal property of the owners of the business may be used to set off any claims made in a court of law. The owners of the business are liable for the contractual liabilities and obligations of the business.

• A company has perpetual succession meaning that a change in the membership does not affect the existence of the company whereas a business does not enjoy this perpetual succession. For example, in the case of a partnership, which is one form of business registration, a change in the membership affects the partnership.

• For the formation of a company, three documents must be submitted. These are

   

  1.       The Articles of Incorporation, which sets out among other things, the core business of the company and the internal rules governing the company.

  2.       Declaration of Compliance stating that the requirements of the Act were adhered to in forming the company

  3.       Registered office notice which states the legal address of the company

  For the registration of a business, the completion of a standard      form is all that is required.

• The property of the business is either owned by one person where it is a sole proprietorship or jointly by the partners where it is a partnership. The property owned by the company belongs to the company and not the members.

• The directors of a company are responsible for the management of the company and the members of the company are not involved in the management of the business whereas the owners of a business are in fact in most cases the managers of the business.

• A company may create floating charges over its assets whereas a business cannot. The owners of the business may however create charges over assets such as land, vehicles and equipment.

• A business may be closed by notice in writing to the Registrar of Companies whereas a company, which has assets or liabilities, must be wound up in accordance with the Companies Act. Where a company has no assets or liabilities it must be removed in accordance with the Companies Act.

• The Companies Act prohibits the registration of any two companies with the same name thereby protecting a company’s name whereas there is no similar provision in the Registration of Business Names Act.

• A company can sue and be sued in its own name whereas a business cannot do this.

• A company is registered under the Companies Act whereas a business is registered under the Registration of Business Names Act.

• Companies must register under the Companies Act whereas not all persons operating a business need register under the Registration of Business Names Act.

COMPLIANCE UNDER THE COMPANIES ACT 2004

 During a Company’s life, it is be required to file certain documents to ensure compliance with the Companies Act.  Each of these documents will attract late filing fees if they are not filed within the time specified by Act. Continued default in filing may lead to prosecution, suit or disqualification of the company’s officers.

 Particulars of Directors or any change therein (Form 23) 

 When?  This document must be submitted to the Companies Office of Jamaica within fourteen (14) days of the incorporation of a Company or of any change in the Particulars of the Directors

 Why? It is important that the particulars of Directors of a company be filed with the Companies Office because

 i)                   Persons doing business with the company can ascertain who  is capable of entering into transactions on behalf of the company.

 ii)                   The liability of officers of the company at various points in time can be determined

 iii)                 Persons wishing to contact the company will be able to          identify the persons to whom communications to the             company may be addressed.

 Notice of Appointment of Company Secretary (Form 20)

When? This document must be submitted to the Companies Office of Jamaica within fifteen  (15) days of the incorporation of a Company or of any change in the Company Secretary

Why?  It is important that the Notice of Appointment or Change of Company Secretary of a company be filed with the Companies Office because

i)                The Secretary of a Company is an officer of the company, whose appointment must form a part of the company’s records.

 ii)                  The liability of officers of the company at various periods       of time can be determined

      iii)         Persons wishing to contact the company will be able to           identify the persons to whom communications to the company may be addressed.

Who can file?   This document must be signed by an existing Director / Authorized Official  of the Company

Registered Office Notice ( Form 17)

 When?  This document is filed along with the documents for incorporation. Changes in the address of the Registered Office must be filed within seven (7) days of the change

 Why? It is important that the Registered Office Notice of a company be filed with the Companies Office because

i)                    Interested investors and members of the public can find out where to locate and/or contact the company

ii)                   All communications and notices should be sent to the Registered Office of the company. In fact, a company is deemed to have received any correspondence which is sent or delivered to the address recorded at the Companies Office of Jamaica as the Registered Office of a Company

Annual Returns ( Form 19 A or Form 19B)

 When? This document should be made up to a date on or before the anniversary of the incorporation of a company if the company is filing returns for the first time. The annual returns should be made up to a date on or before the anniversary of the last return filed in the case where previous returns have been filed.  The company has 28 days from the date to which the return is made up before the return becomes overdue.

 Why?  It is important that the Annual Returns  of a company be filed with the Companies Office because

i)                    The Annual returns are important in identifying changes in the ownership or management of a company during the period for which the return is made

ii)                   These returns are also important in identifying changes in the value of shares and share transactions during the period for which the return is made.

* Companies limited by Guarantee must file Financial Statements along with their Annual Returns

·          All Public Companies and other Companies, which meet certain criteria set out by the Act are also required to file Audited Financial Statements along with their Annual Returns

 All Companies whose names appear on the register of companies are required to comply with the statutory obligations under the Companies Act whether or not the company is actively doing business.  Where a company has stopped doing business and wishes to be removed from the register, the procedure for removal may be followed.

 REMOVAL UNDER THE COMPANIES ACT 2004

 REMOVAL BY REQUEST

 A company, which has ceased trading and has no assets or liabilities may request removal under the Companies Act. In order to do this, the company will be required to do the following:

1.       File any outstanding documents (Annual Returns, notices etc., to bring the company’s filings up to date)

2.       Submit a request for removal in writing to the Registrar of Companies. This letter must be signed by a Director or Authorized Official of the company and must expressly state that the company wishes to be removed from the register of companies.

3.       Submit  a letter from an Auditor/Chartered Accountant  certifying that the Company has neither assets nor liabilities .

The applicable fee for the removal (in addition to the fees for filing the outstanding documents) consists of the processing fee for the removal, and a charge for advertising the removal in the newspaper.

A company which still as assets or liabilities must proceed by way of Liquidation.

REMOVAL BY THE REGISTRAR OF COMPANIES

1.       The Companies Act 2004 empowers the Registrar of Companies to strike from the Register of Limited Companies any Company where she has reasonable cause to believe that the company is not carrying on business or in operation.

 In the event that a company is struck off the Register while it is still carrying on business or owns property, the assets of the Company will go bona vacantia to the Crown.  That is, The Government of Jamaica becomes the owner of  the property .

 If a company is struck of the Register while it owns property or is carrying on Business, it may within Twenty (20) years of being struck off, request restoration to the register. Such a company will be required to satisfy the Registrar of Companies that

i)                    The company was at the time of striking off, carrying on business or in operation

                                                                 Or

ii)                   There is just cause for the Company to be restored to the Register

A Company seeking restoration would be required to bear the cost of restoration as well as payment to update its records

 N.B. Changing the Name of a Company or transferring ownership of the Company or the death of the members does not automatically result in closure of the Company

COMPLIANCE UNDER THE BUSINESS NAMES ACT

  Persons registered under this Act are required to renew their registration every three years and to inform the Registrar in the event of any changes to the business (e.g. the address).

 COMPLIANCE UNDER THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT

An industrial And Provident Society is expected to file Annual return (Form K) along with financial statements each year.