INTRODUCTION
The regulation of the new successive formation limited liability company is one of the most important commercial changes to come from the Entrepreneurs Act 14/2013 of September 27, 2013.
LEGAL SCOPE
Regulation of this type of company is introduced by the incorporation of Article 4bis, and the modification of Articles 4, 5 and 23 of the revised Capital Companies Act 1/2010 (hereinafter “TRLSC”).
FEATURES
1. It is a limited liability company without a minimum capital requirement.
Article 4 TRLSC, regulating the minimum capital of joint stock and limited liability companies, now introduces an important exception to the general scheme of the latter. Thus, it states that limited liability companies may be incorporated “with a share capital below the legal minimum”.
However, it is understood that share capital cannot be zero. This argument comes from Article 23 d) TRLSC, regulating that the statutes must state the number of shares into which the share capital is divided, their value and sequential numbering, as well as the expression “below the legal minimum equity” (Article 4 and 23 TRLSC) which means, and presupposes that share capital must always exist, however reduced it may be.
2 . No need to certify the deposit of the share capital in a bank account.
This requirement is no longer obligatory, the simple expression in the public deed of incorporation that the share capital has been deposited in the company treasury is sufficient. This new system is compensated with the introduction of joint and several liability, before creditors and the company itself, for the founders and those acquiring shares (participations) at the incorporation of the company, given the reality of such capital contributions (Article 4bis.3 TRLSC).
3. It is necessary that the statutes (while not reaching the minimum capital requirement of 3.000 Euro) express that it is a company subject to successive formation according to Article 4bis TRLSC.
4. There is no deadline for reaching the minimum level of capital.
However, while the share capital remains under the legal minimum, this kind of company will be subject to certain requirements, which are listed below.
OBLIGATIONS
a) The obligatory allocation to legal reserve of an amount at least equal to 20 percent of the annual profits, with no limit.
b) Once such legal or statutory requirements have been fulfilled, dividends may only be distributed to the partners if the net asset value is, as a consequence of such distribution, not below 60 percent of the minimum legal capital.
c) The annual amount of the remuneration paid to shareholders (partners) and directors in these fiscal years may not exceed 20 percent of the net assets of the corresponding fiscal year, notwithstanding other remunerations that they could receive as employees of the company or through the rendering of professional services agreed by the company with said shareholders (partners) and directors.
CONCLUSION
This new way of incorporating limited liability companies, brings with it, in economic terms, greater facility for entrepreneurs with initial low resources to develop their business project.
Vilá Abogados
For more information, please contact:
25th of October 2013
