What does the authorized capital mean for a company?
The company has a share capital, even small children know about it now. However, not every adult will be able to tell why the company needs this capital, how to pay it, and how these funds can be used.
Our legislation is rapidly developing, and not so long ago, the registration procedure for an LLC was eased. Now the authorized capital can be paid after registration. It must be said that before these changes, the payment of the authorized capital was not a big problem either, but now the founders simply began to “forget” to pay the authorized capital. What is fraught with such forgetfulness? It is clear that the problems, but what? Let's see.
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Authorized capital (UK) - the first money of the company. However, this is not exactly the same as the starting capital. These funds can be compared more with the nominal value of the company at the dawn of its activities. Founders are thrown into a common "piggy bank", which, before the law and people, will be the minimum guarantor for future contractors.
It is possible to make funds in the authorized capital in the following ways:
First , in money. You deposit them in the company's cash desk or transfer by bank transfer to its savings or settlement account.
The scheme with a savings account is extremely rare. Such an account is opened before registration in the name of the company. Most often, payment is made after the company is registered on its bank account.
Secondly , the Criminal Code can be paid and not in money. Not anything, of course. Donor organs or bitcoin payment you are unlikely to accept. But you can use your property, securities or property rights (rights to software, trademark, etc.). But keep in mind that the company's charter may indicate what exactly cannot be contributed as a share capital.
And one more important point: if we do not pay money, we will have to involve an independent appraiser to confirm the amount. Previously, an appraiser had to be attracted at a property value of more than 20,000 rubles, and now always. Given that these services are not cheap, the non-monetary contribution loses some of its attractiveness.
There is quite a lot of time for payment by the founders. When creating a company, founders usually have to pay up the authorized capital within four months from the date of registration . But in the decision on the establishment or the agreement on the establishment can be set a shorter period, so as not to relax and not forget.
And here is the long-awaited "BUT!". The law states that the minimum size of the Criminal Code must be paid in cash. Then, if the authorized capital of 20 000 thousand, then ten of them need to pay it in money, and the rest can be property.
As you understood, with payment everything is quite simple. Difficulties are only the evaluation of intangible assets, so before making a decision on the contribution of something other than money, think a few times.
The law does not provide for any penalties for non-payment of the authorized capital within the prescribed period, allowing the founders themselves to write down penalties and fines in the contract of establishment.
But at the same time, he insidiously envisages a much more effective consequence of the non-payment of the Criminal Code: “in the event of non-payment of a share in the authorized capital of a limited liability company, within the time provided for by law or the memorandum of association, the person loses the status of a member of the Company. The share of the participant passes to the Company and further must be distributed within a year from the moment of transition ”.
Judicial practice on this issue is definitely not in favor of defaulters. As examples, you can read the Resolution of the FAS of the Moscow District of 05.26.2008 No. KG-A41 / 2035-08 in case No. A41-K1-10060 / 06b, the Definition of the Supreme Arbitration Court of the Russian Federation of October 29, 2009 No. VAS-11470/09 in case No. A24- 2307/2008.
If the participant has not paid his share, then the transaction with this share is not committed. More precisely, you commit something, only it will be invalid. Therefore, if you decide to buy or sell a stake in the company, be sure to check whether the payment has passed. As they say, check it seven times - one time.
Let's return to the question of spending money from the share capital. Is it possible to spend this money or do you need to keep an “emergency reserve” in the amount of the Criminal Code?
The law does not contain restrictions on use. And he immediately points out that “at midnight the carriage will turn into a pumpkin” and if at the end of the second or each subsequent fiscal year the value of the Company's net assets will be less than the authorized capital, the Company is obliged to announce a decrease in its authorized capital and register its decrease in the prescribed manner. If the value of these assets becomes less than the minimum amount of authorized capital determined by law, the Company is subject to liquidation.
Therefore, we spend money, but carefully and monitor net assets every year.
An important issue is the size of the share capital - how to determine it? The minimum for LLC is determined and is only 10,000 rubles, but no one has determined the maximum size.
At the same time, a large share capital is not a guarantee of your peace of mind. Taking into account the provisions on the need to match the net assets, bloated MC is more likely harmful. Reduction of capital - the procedure is not very complicated, but guaranteed to be long, so you should not inflate the authorized capital of your company for no particular reason.
Judicial practice also confirms the inconsistency of persecution of the minimum Criminal Code, indicating in the decisions something like the following: “... since the presence of authorized capital in an amount not contrary to the law cannot be regarded as a sign of bad faith” (Resolution of the Federal Antimonopoly Service of the North-West District of October 29, 2007 on No. A56-19986 / 2006).
Our legislation is rapidly developing, and not so long ago, the registration procedure for an LLC was eased. Now the authorized capital can be paid after registration. It must be said that before these changes, the payment of the authorized capital was not a big problem either, but now the founders simply began to “forget” to pay the authorized capital. What is fraught with such forgetfulness? It is clear that the problems, but what? Let's see.
')
How and when to pay?
Authorized capital (UK) - the first money of the company. However, this is not exactly the same as the starting capital. These funds can be compared more with the nominal value of the company at the dawn of its activities. Founders are thrown into a common "piggy bank", which, before the law and people, will be the minimum guarantor for future contractors.
It is possible to make funds in the authorized capital in the following ways:
First , in money. You deposit them in the company's cash desk or transfer by bank transfer to its savings or settlement account.
The scheme with a savings account is extremely rare. Such an account is opened before registration in the name of the company. Most often, payment is made after the company is registered on its bank account.
When paying to the company’s account, it is important in the purpose of payment to indicate “Contribution to the share capital on the basis of Decision / Protocol No. __ dated“ _ ”____.
Secondly , the Criminal Code can be paid and not in money. Not anything, of course. Donor organs or bitcoin payment you are unlikely to accept. But you can use your property, securities or property rights (rights to software, trademark, etc.). But keep in mind that the company's charter may indicate what exactly cannot be contributed as a share capital.
And one more important point: if we do not pay money, we will have to involve an independent appraiser to confirm the amount. Previously, an appraiser had to be attracted at a property value of more than 20,000 rubles, and now always. Given that these services are not cheap, the non-monetary contribution loses some of its attractiveness.
There is quite a lot of time for payment by the founders. When creating a company, founders usually have to pay up the authorized capital within four months from the date of registration . But in the decision on the establishment or the agreement on the establishment can be set a shorter period, so as not to relax and not forget.
For example, a company is registered on January 1, which means that it is necessary to pay up the authorized capital no later than May Day of the same year. And in the agreement on the establishment, you can specify that the Criminal Code should be paid no later than March 1. Extend the term, for example, until July 1 or November is impossible.
And here is the long-awaited "BUT!". The law states that the minimum size of the Criminal Code must be paid in cash. Then, if the authorized capital of 20 000 thousand, then ten of them need to pay it in money, and the rest can be property.
As you understood, with payment everything is quite simple. Difficulties are only the evaluation of intangible assets, so before making a decision on the contribution of something other than money, think a few times.
And if you do not pay?
The law does not provide for any penalties for non-payment of the authorized capital within the prescribed period, allowing the founders themselves to write down penalties and fines in the contract of establishment.
But at the same time, he insidiously envisages a much more effective consequence of the non-payment of the Criminal Code: “in the event of non-payment of a share in the authorized capital of a limited liability company, within the time provided for by law or the memorandum of association, the person loses the status of a member of the Company. The share of the participant passes to the Company and further must be distributed within a year from the moment of transition ”.
Judicial practice on this issue is definitely not in favor of defaulters. As examples, you can read the Resolution of the FAS of the Moscow District of 05.26.2008 No. KG-A41 / 2035-08 in case No. A41-K1-10060 / 06b, the Definition of the Supreme Arbitration Court of the Russian Federation of October 29, 2009 No. VAS-11470/09 in case No. A24- 2307/2008.
If the participant has not paid his share, then the transaction with this share is not committed. More precisely, you commit something, only it will be invalid. Therefore, if you decide to buy or sell a stake in the company, be sure to check whether the payment has passed. As they say, check it seven times - one time.
Is it possible to spend?
Let's return to the question of spending money from the share capital. Is it possible to spend this money or do you need to keep an “emergency reserve” in the amount of the Criminal Code?
The law does not contain restrictions on use. And he immediately points out that “at midnight the carriage will turn into a pumpkin” and if at the end of the second or each subsequent fiscal year the value of the Company's net assets will be less than the authorized capital, the Company is obliged to announce a decrease in its authorized capital and register its decrease in the prescribed manner. If the value of these assets becomes less than the minimum amount of authorized capital determined by law, the Company is subject to liquidation.
Therefore, we spend money, but carefully and monitor net assets every year.
How much to hang in grams?
An important issue is the size of the share capital - how to determine it? The minimum for LLC is determined and is only 10,000 rubles, but no one has determined the maximum size.
It happens that banks and tax assess the minimum share capital as a sign of bad faith of the company. There is no rational explanation for this. Often, the bank’s refusal to open an account is, in fact, not related to the size of the share capital, but is only indicated as the official reason.
At the same time, a large share capital is not a guarantee of your peace of mind. Taking into account the provisions on the need to match the net assets, bloated MC is more likely harmful. Reduction of capital - the procedure is not very complicated, but guaranteed to be long, so you should not inflate the authorized capital of your company for no particular reason.
Judicial practice also confirms the inconsistency of persecution of the minimum Criminal Code, indicating in the decisions something like the following: “... since the presence of authorized capital in an amount not contrary to the law cannot be regarded as a sign of bad faith” (Resolution of the Federal Antimonopoly Service of the North-West District of October 29, 2007 on No. A56-19986 / 2006).
Findings:
- Share capital is a unit that is worth paying close attention. You should not treat it as a simple formality.
- Consider whether it is worth paying for something other than money.
- The minimum CC for a limited liability company is 10 thousand rubles. The maximum amount in the law is not specified. However, you should not “inflate” the size of the share capital without any special reason.
- Money deposited in the Criminal Code is not a “dead weight” on the company's account. Use them, just keep track of the financial statements and the value of the company's assets.
Source: https://habr.com/ru/post/300900/
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