Corporate Secretary or Treasurer Unreachable or Refusing to Sign: Getting Your GIS and AFS Filed

First find out: silent, or with a reason not to sign?

These two officers can hold up filings because their signatures carry personal responsibility. The General Information Sheet must be signed by the corporate secretary and certified under oath as true. The statement of management's responsibility in the annual financial statements is normally signed by senior officers including the treasurer or chief finance officer. Once they sign, the consequences of an untrue statement fall on them. So a refusal is not always obstruction.

The usual causes fall into four groups. Work out which one you are facing:

• The retainer lapsed. The secretary was supplied by an agency or law firm, the annual fee was not renewed or an invoice went unpaid, and replies stopped.
• The person moved on. The individual left the firm, went abroad or fell ill, and nobody told the company.
• They do not accept the contents. The shareholdings on the sheet do not match the stock and transfer book, a meeting they are asked to certify was never held, or the financial statements contain figures they cannot verify.
• There is another dispute. The signature is being used as leverage. This needs to be handled separately from any argument about fees or handover of files.

The way to find out is simple: ask in writing and ask for a written reply. A single sentence, "Please state why you are unable to sign, or when you will be able to," both gets you the answer and gives the board a basis for acting later. If the reply points to the third group, the task is to reconcile the stock and transfer book, hold the meeting properly or have the accountant resolve the figures. For the qualifications and duties attached to each post, see corporate secretary and treasurer in the Philippines explained.

The first few days: a written demand, a deadline list, and three things not to do

Two things need to happen at once in the first few days: create a written record of your requests, and work out exactly which filings fall due when.

1. Send a written demand. Address it to the officer's registered postal and email addresses. List the documents awaiting signature, the materials the company has already prepared and the date by which you ask for a reply. Keep the tone restrained and factual.
2. Check the service contract and payment history. If unpaid fees are behind this, sort out the account. The money dispute and the duty to sign are separate matters, but paying what is properly owed is often the fastest solution.
3. Draw up a deadline list. General Information Sheet, annual financial statements, beneficial ownership declaration, mayor's permit renewal and the bank's periodic information update. Note what is due when and what is already late.
4. Take stock of what the company holds. Stock and transfer book, minutes book, articles and bylaws, receipts for past filings, and the login for the company's online filing account with the Securities and Exchange Commission.

Three things to avoid:

• Do not sign for them or reuse an old signature page. Attaching a signature page from an earlier document to a new one is falsification all the same.
• Do not alter facts to get a signature. Equally, do not respond to a refusal by finding someone who will sign an untrue document.
• Do not simply wait. Penalties for late filing build up over time and prolonged non-filing leads to delinquent status. The consequences are set out in what happens when audited financial statements are filed late.

Give a reasonable period for a reply after the demand. If none comes, or the reply is that the service has ended, move to the next step and replace the officer.

Replacing the officer: the board elects the secretary and treasurer

The corporate secretary and treasurer are officers elected by the board. The board can equally elect someone else to take over. The incumbent's consent is not required, and you do not have to wait for a resignation. The steps are:

1. Confirm the board can validly meet. A quorum is the precondition. If the board itself is short, start with what to do when the board falls below strength.
2. Find a qualified successor. The corporate secretary must be a Filipino citizen and a resident of the Philippines. The treasurer must be a resident. One person cannot be both president and secretary, or both president and treasurer. Follow any further limits in the bylaws.
3. Hold the board meeting and pass the resolution. It should state that the incumbent is relieved, name the successor and give the effective date. The meeting may be held remotely under the applicable rules. The minutes are signed by the presiding officer and whoever was designated to record the meeting, and the new secretary issues certificates once in office.
4. Notify the former officer in writing. Tell them they have been replaced and ask for the return of company records and account credentials in their custody.
5. Update the Commission. A change of officers is reported through an updated General Information Sheet. The deadline and method follow the Commission's current rules.

If the bylaws provide for an assistant corporate secretary and someone holds that post, certain documents can be signed by the assistant under proper authority before the formal change. That is the least disruptive bridge. If no such post exists, consider creating one at the same board meeting.

One caution. If the incumbent has a service contract with the company, ending it early may raise questions of fees under that contract. This is a contractual matter. It does not affect the validity of the board's election, but it should be dealt with under the contract and not ignored.

After the change: catching up on overdue GIS and annual reports in order

Once the new secretary is in place, establish the facts first and then file from the earliest outstanding year forward. Do not file only the current year.

• Check the underlying records. The new secretary answers for what they sign, so they will start by checking the stock and transfer book, the directors and officers elected at the last valid election, paid-up capital and the registered address. Where an earlier filing does not match the facts, correct it truthfully. Do not carry the error forward.
• Be truthful about meetings that were not held. For a year in which no annual stockholders' meeting took place, the sheet cannot say that one did. How to report that situation follows the Commission's current requirements.
• Audit first, then file. The annual financial statements must be audited by an external auditor before they go to the tax office and the Commission. Where the treasurer has changed, the statement of management's responsibility is signed by the current officers. How to sign for years before they took office follows the requirements of the auditor and the Commission.
• Deal with the online filing account. Filings are now made mostly through the Commission's online system. If the account is registered under the former secretary or their email, apply under the Commission's procedure to change the authorised representative or re-enrol. The documents required follow the system's current rules.
• Penalties and relief. Late filings attract penalties. The Commission introduces penalty relief or catch-up programmes from time to time. See penalties for missed filings and how to remedy them for whether one applies.

If the delay has been long, check the company's status with the Commission before anything else. A company already tagged delinquent or revoked has a restoration process to go through in addition to catching up. See what to do when a company is tagged delinquent or revoked.

Knock-on effects: the bank, the tax office and licences each run on their own track

The secretary's and treasurer's signatures are not used only at the Commission. Until the change is made these other tracks stall too, and after it each must be updated in turn.

• The bank. Banks ask for a secretary's certificate when opening accounts, changing signatories and updating records. None of that can proceed while the secretary is unreachable. After the change the bank will want the board resolution electing the new officer and the updated General Information Sheet before it accepts the new secretary's signature. If the treasurer was also a bank signatory, see what to do when a bank signatory is gone and the account is stuck.
• The tax office. The financial statements attached to the annual income tax return need management's signature. If the responsible officer shown in the tax registration changes, update that as well.
• Mayor's permit and other licences. Renewal papers often call for the latest General Information Sheet or a secretary's certificate, so a stalled filing drags the renewal with it.
• Transactions and visas. Share transfers, capital increases, loans, bids and work visa applications for foreign staff commonly require the latest sheet and a secretary's certificate.

When setting priorities, do not look only at the Commission's penalties. Ask which track will cause real loss first. A restricted bank account or an expired permit that stops you trading is usually more urgent than a fine. Work backwards from the documents needed for that most urgent track, and you have the first batch for the new officer to sign after the board's election.

If filings have really stalled because of the bookkeeping side, for example the books were never done or no auditor has been engaged, that is a separate track, covered in what to do when an accounting agent has botched your filings.

Not being held up by one signature again, and what Yixing can do

A foreign owner cannot serve as corporate secretary, so the post will always be in someone else's hands. What you can do is make sure it does not depend on one person who may stop answering.

• Choose an arrangement backed by a firm, not a single personal acquaintance. Put response times, custody of records and handover duties into the service contract.
• Provide for an assistant corporate secretary in the bylaws as a backup.
• Keep the company's own complete copies of the stock and transfer book, minutes book, articles and bylaws, and filing receipts for every year.
• Register the online filing account under an email the company itself controls, and keep a record of it.
• Put each year's filing deadlines in a calendar and deliver materials to the secretary well ahead. Do not go looking for a signature the day before.
• Give accurate information. A secretary will keep signing over the long term only if every document they sign can withstand checking.

Yixing Travel Consultancy (SEC Registration No. CS202009551, Bureau of Immigration Accredited Agency No. CA-202624381-1) provides company setup and amendment services. We help prepare board papers for electing new officers, file the updated General Information Sheet, sort out and submit overdue routine filings, and coordinate updates with the bank, the tax office and city hall. We will not arrange for anyone to sign a document that does not reflect the facts. Contract disputes with a former officer, recovery of records and any litigation are for licensed counsel, to whom we can introduce you. We are a private firm with no affiliation to any government office, and we cannot promise any outcome. For your specific case consult a licensed lawyer; this article is not legal advice.