Application by Directors or Members to Strike Off the Name of a Company
A director or shareholder/member of a company can make an application to request the name of a company be strike off the Register. This application is limited to a company not carrying on business or not in operation.
REQUIREMENTS FOR THE APPLICATION
The application must fulfil the following requirements:
(a) The resolution of the shareholders have been passed for the initiation of the application to strike off the name of the company from the register on the basis that the company is not carrying on business or not in operation
The resolution passed must be enclosed together with the application to reflect the consent of the majority shareholders in respect of the striking off application.
If the requisite majority cannot be obtained due to shareholder(s) who is untraceable, the application may still be submitted to SSM provided that attempts have been made to trace the whereabouts of the shareholder(s) by writing to him at the residential address as stated in the Registrar’s records or any other records. These attempts must be made by way of registered post. Where the notification from the postal agency is being relied on as a proof, this should be submitted as an attachment to the application. Proof of any other modes of attempt (if any) must also be attached to the application.
(b) The company has no assets and liabilities at the time when the application is made
The management accounts of the company shall show that the company has no assets and liabilities. If the company’s last audited financial statements lodged with the Registrar showed that the company has assets and liabilities, the applicant must submit documentary evidence to show that the assets have been disposed and that the liabilities have been settled or waived.
If the company has not commenced operation, the applicant must make the following declaration:
(i) That there has no transaction since the company was incorporated; and
(ii) That the company has not opened a bank account or if there is an account, that the account has been closed (the latest bank statement is to be attached).
(c) The company has no outstanding charges in the Register of Charges
In respect of charges, the applicant must ensure that the company has no outstanding charges in the Register of Charges kept with the Registrar.
(d) The company has no outstanding penalties or offer of compounds
The company must ensure that all such liabilities are settled before an application for striking off is made.
(e) The company has no outstanding tax or other liabilities with any Government Department or Agency
Where a company has commenced operation, it must settle all outstanding tax and obtain a tax clearance prior to the filling of the application for striking off.
(f) The information of the company with the Registrar is up to date
The particulars of director(s) of the company and any other information as the Registrar deems fit must be the same as in the Registrar’s records. If there are any differences or changes in respect of the information of the directors of the company, the company must first ensure that the Registrar’s records are updated before an application for striking off is made. (Applicant may check the records by getting a print-out from the e-Info service)
(g) The company is not involved in any legal proceeding within or outside Malaysia
The applicant should not make any application for striking off if it is aware that there is an impending court action against it so as not to deprive others, who have initiated court action against the company, from proceeding with the court action.
(h) The company has not made any return of capital to the shareholders
The company is prohibited to make any return of capital to the shareholders to enable it to apply for a striking off. If a company still have its capital, the company should proceed with the voluntary winding up process to formally cease its existence.
(i) The company is not a holding company
The holding company should commence a voluntary winding-up proceeding to dissolve the company.
(j) The company is not a “Guarantor Corporation”
A “Guarantor Corporation” means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by any third party.
APPLICATION BY SUBSIDIARY COMPANIES
The Registrar may also exercise his discretion to allow the name of dormant subsidiary companies to be struck off. Apart from complying with the requirements above, the subsidiary companies must also fulfil the following requirements:
(a) In the case of a wholly-owned subsidiary, a letter of consent from the holding company is required to be attached to the application. This letter of consent must be signed by one of the directors of the holding company and be printed on the holding company’s letterhead;
(b) In the case of a company other than a wholly owned subsidiary, letters of consent from all shareholders are required to be attached to the application. The letters of consent must be signed, dated and bear the signature of the shareholders. Where any of the shareholders is a company, the letter of consent must be signed by all the directors and printed on the company’s letterhead; and
(c) The holding and subsidiary companies must declare that they are not subject to or involved in any investigation or any prosecution by any authority to the best knowledge of the director/shareholder signing the application for striking-off or the directors/shareholders signing the consent letter.
ADDITIONAL REQUIREMENTS FOR AN APPLICATION BY COMPANY LIMITED BY GUARANTEE
In the case of an application relating to a company limited by guarantee, in addition to the requirements set out above, the application must be accompanied with its latest audited financial statements.
The applicant must complete the Declaration-Application to Strike Off Company in Schedule B of the Practice Directive 1/2017 (Appendix 1) and ensure that all requirements as set out in the Checklist (Appendix 2) are complied with before submitting the application. Additionally, the applicant must also ensure that all boxes in the said Checklist are ticked and that all the necessary supporting documents are enclosed before submitting the application.
The completed application shall be submitted together with an application fee of RM100.00.
The striking off exercise is effected through the issuance of notice to the relevant parties and the publication of notification and gazette. On publication of the gazette, the company shall henceforth be dissolved.
RESPONSIBILITY TO RETAIN REGISTERS AND RECORDS OF THE COMPANY AFTER STRIKING OFF
The directors shall retain all registers, books, statutory records, accounting records and documents for a period of seven years after the company has been struck-off from the register and shall be made available for inspection upon request by the Registrar.
If you have any enquiries or need clarification, please contact Bestar RW William.