How severe is the penalty for not complying with the requirement to have audited financial statements stipulated by the law? How severe is the fine? Who imposes the fine? What is the deadline and what are the caveats?
Failure to comply with the audited financial statements requirement is a legal offense
In the event that an entity violates the provisions of § 19, § 22 or § 22a of the Accounting Act (the "Act") by not complying with the requirement to have audited financial statements (does not or refuses to have the financial statement verified by a certified auditor) or verification of the consistency between the financial statements and the annual report, commits according to § 38 section 1 letter d) of the Act a legal offense.
If found guilty, the tax authority is obliged to impose a pecuniary fine on the entity for failing to meet the lawful requirement.
Provision applies not only to the failure to have the financial statements audited but also to:
- failure to audit the compliance and consistent of the financial statement with the annual report (§ 19 of the Act),
- failure to audit the consolidated financial statements and its consistency with the consolidated annual report (§ 22 of the Act)
- failure to audit the consolidated financial statements of the public sector entities, central government and its conformity with the consolidated annual report (§ 22a of the Act).
The amount of the fine imposed in case of the failure to comply with the audit obligation
The fine is not firmly established. The law says that the maximum penalty is up to 2% of the total net assets as reported in the balance sheet for the period checked, but no more than 1 million EUR. (Net assets -- means assets adjusted for depreciation and provisions).
Who sets the penalty?
The fine is imposed by the tax authority, who is lawfully entitled to control the compliance with the Accounting Act in entities.
The tax code shall apply to the proceedings to impose penalties, including its recovery and appeal against the imposition of fines.
The § 38 section 5 also states that the tax authority, when imposing a penalty, takes into account the seriousness of the crime, duration, consequences and circumstances of committing the offense.
Thus, the duration and circumstances of the offense affect the final amount of the fine. In the event that someone would incur damage, because the financial statements have not been audited, the tax office will probably take into consideration the severity and consequences of the offense.
The time limit for the penalty
According to § 38 section 6, tax authority imposes a fine of up to one year from the date when the offense was discovered but at the same time the authority sets the limit of 5 years from the end of the accounting period in which the offense was committed. After the 5 year period the authority cannot impose the fine.
Furthermore, according to § 38 of the Act there are several other offenses related to the financial statement audit.
These offenses happen in case the entity:
- has not appointed or dismissed the auditor (§ 38 section 1 letter e) of the Act),
- has not established an audit committee pursuant to § 19 (§ 38 section 1 letter f) of the Act)
- has not lodged the auditor's report to the Register (§ 38 section 1 letter c) of the Act).
At first glance, these offenses appear to be insignificant and companies might be tempted to dodge these above-mentioned obligations.
However, the fine is as severe as the failure to comply with the audit requirement -- up to 2% of the total net assets as reported in the balance sheet for the period checked, but no more than EUR 1 million.
We must not forget the standalone offense applicable to entities that have not kept and stored the auditor's report for a period of 10 years (§ 38 section 1 letter N) of the Act). In this case, the fine is lower and up to 2% of the total net assets in the balance sheet for the period checked, but no more than EUR 100 000.