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Documentation requirements for Application for Appointment of Director / Trustee of Company Limited By Guarantee Amended

11 May 2023

The Registrar of Companies of Malaysia has updated Checklists 1 to 8 that accompany the Guidelines on Company Limited by Guarantee on 14 April 2023.
 
Most of the amendments to the checklists are clerical or typographical in nature except for the amendments to Checklist 3 (‘New Checklist 3’) which sets out the requirements relating to an application for the approval of the Minister or the Registrar for the appointment of a Director or Trustee of a Company Limited by Guarantee (‘CLBG’).

The amendments in the New Checklist 3 are as follows: 
  1. New Paragraph 11 – this new provision requires the CLBG to submit a copy of the approval letter from the government agencies / statutory bodies or other relevant bodies relating to the appointment of the new director(s) if the requirement for such approval is stated in the CLBG’s Constitution. This requirement is supplemented by a new second sentence in paragraph 14 of the New Checklist 3 that requires the CLBG to specify the article / clause pertaining to the approval from the government agencies / statutory bodies or other relevant bodies if such requirement is stated in the CLBG’s Constitution. 

  2. Paragraph 12 – this provision which requires the CLBG to submit a declaration by the proposed appointee under section 201 of the Companies Act 2016 is identical to paragraph 11 of the previous checklist 3 (‘Superseded Checklist 3’) except for the deletion of the phrase ‘/Form 48A (CA 1965)’ which is now redundant. 

  3. Paragraph 13 – reads as follows:

    'A copy of an approval letter on the appointment of the new director(s) from the Director General of the Inland Revenue Board of Malaysia if the CLBG is the tax exempted company under subsection 44(6) of the Income Tax Act 1967.'

    Paragraph 13 of the New Checklist 3 replaces paragraph 12 of the Superseded Checklist 3 which reads as follows:

    ‘An approval letter from the Director General of the Inland Revenue Board of Malaysia to the CLBG relating to this application (for CLBG with tax exemption under subsection 44(6) of the Income Tax Act 1967).’

    From a comparison of the two provisions, it is evident that there is greater clarity in the drafting of paragraph 13 of the New Checklist 3 as compared with paragraph 12 of the Superseded Checklist 3. 
  1. Paragraph 14 – reads as follows:

    ‘A statutory declaration by the company secretary or one of the directors / trustees that in making this application, the CLBG has complied with all requirements of the CLBG’s Constitution relating to the appointment of the new director(s). Please specify the article / clause pertaining to the approval from the government agencies / statutory bodies or other relevant bodies if such approval is stated in the Constitution.’

    Paragraph 14 of the Superseded Checklist 3 reads as follows:

    ‘A statutory declaration that in making this application, the CLBG has complied with all requirements of the CLBG’s current Constitution by company secretary or one of director / trustee.’

    The redrafted first sentence of paragraph 14 of the New Checklist 3 makes it clear that the declaration is to confirm that ‘the CLBG has complied with all requirements of the CLBG’s Constitution relating to the appointment of the new director(s)’ whereas paragraph 14 of the Superseded Checklist 3 was of wider import as it required the declaration to confirm that ‘the CLBG has complied with all requirements of the CLBG’s current Constitution’.

    Our comments on the second sentence of Paragraph 14 of the New Checklist 3 are set out in paragraph 1 above.
  1. Paragraph 13 of the Superseded Checklist 3 which requires the CLBG to furnish ‘A copy of the approval letter from the Director General of the Inland Revenue Board of Malaysia to the CLBG for tax exemption under subsection 44(6) of the Income Tax Act 1967, if applicable’ has been removed from the New Checklist 3. 
Comment
 
Stakeholders in CLBGs should take note of the new requirement introduced under paragraph 11 and the second sentence of paragraph 14 of the New Checklist 3 when submitting an application for approval of appointment of a proposed director / trustee in order to ensure a smooth application process.
 
Alert by Sheba Gumis (Partner) and Faith Chan (Associate) of the Corporate Practice of Skrine.
 
 

This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact skrine@skrine.com.

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