In the Official State Gazette (Boletín Oficial del Estado – BOE) of the 1st of June 2022, the Resolution of the Directorate General of Legal Security and Public Faith (La Resolución de la Dirección General de Seguridad Jurídica y Fe Pública – DGSJFP), of the 13th of May 2022, was published in relation to the refusal of the registrar of the commercial registry of Cadiz, which denied the registration entry of the decision of a sole partner on the dissolution of a sole-director company.
In this case, we are dealing with the registration entry of a deed in which the decisions adopted by the sole partner with regards to the dissolution of the company are publicly entered, as well as the exhaustion of the partner´s role as sole director and his subsequent appointment as sole liquidator.
The registrar suspended the registration entry because he considered that the sole partner´s powers of directorship and legal disposal over his assets had been suspended, since he was declared insolvent and in phase of liquidation. And in this case, the insolvency administration replaced the debtor in the directorship and legal disposal of his assets.
An appeal was filed against this decision, alleging that the stance adopted by the registrar on the dissolution of the company constituted a duty imposed by Article 363.1 of the Spanish Companies´ Act (La Ley de Sociedades de Capital – “LSC”), given that the company’s net assets were worth less than 50% of the company capital, and that therefore, they were not strictly his assets, but rather those of the company and also political in nature, which does not entail a single direct operation on the company shares into which the capital is divided.
The Directorate General rejected the appeal and confirmed the registrar´s decision based on the following point of fundamental law:
“It is evident that the decisions that may be adopted by the sole partner form part of the legal faculties that are granted by the ownership of company shares such as those integrated in the collective assets of the insolvency proceedings, and that, therefore, their exercising must be suspended for the insolvent party and attributed to the directorship. When the adopted resolution consists in the dissolution of the company, with the following opening of the period of liquidation (Article 361 of the LCS), a relevant alteration must be produced in this part of the collective assets of the insolvency proceedings.” Furthermore, it must be highlighted that “the decision to dissolve the company coincides with the circumstances described in Article 363.1e of the LSC, and does not constitute the only due action, but rather one of the alternative ones that the specific law provides in order to render solvent the state of financial imbalance.”
Vilá Abogados
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17th of June 2022
