Delvis indbetaling af selskabskapital: En gennemgang af de retlige konsekvenser ved brug af reglen

Louise Løkke

Studenteropgave: Kandidatafhandlinger

Abstrakt

The Danish Companies Act was reformed in 2009, and introduced the option of partly postponing the payment of the company’s share capital. The object of this thesis is to take a further look at some of the legal consequenses of the partial payment of the share capital. The focus will be on the consequences in relation to company law, the statute of limitations of the claim on the outstanding share capital, the consequences in relation to tax laws and the accounting treatment and the financial statement presentation. In summary, the legal rights and obligations for the shareholders, according to the Companies Act, are not affected by the partial payment, so their administrative and financial remedies are intact. They loose the right to vote at the annual general assembly, however, if they neglect to pay the remaining debt on the managements demand. The management of the company has an obligation to ensure, that the company’s financial ressources are sensible and sufficient at all times. They therefore have to require the shareholders to pay their debts, if the company is in need of liquid funds. The company’s claim on the liability on the share capital is subject to limitation, in that the claim is obsolete 3 years after the founding of the company, unless either the management or the shareholder suspends the statue of limitations. If the shareholder takes part in the management of the company, or exercises his administrative and financial remedies, the statute of limitations is continually suspended. If not, the management will have to suspend the statue of limitations, with the initiation of legal remedies, in order for the company not to loose the right to the claim. If the claim is lost, the company will have to make a capital reduction, or a forced winding up of the company will be initiated. In terms of tax, the consequences of a loss of the claim on the share capital, is that the company will not be able to deduct this loss in their tax return. If there has been realised a loss on the claim, the company will have to write down the claim accordingly. If the company makes such a devaluation, the shareholder will also have to write down his acquisition cost of the share, and will consequently not receive a tax reduction either. When presenting the outstanding claim on the share capital in the financial statements, there are two methods of presentation. The gross share capital can be presented, where a receiveable equalling the outstanding claim is recorded in the balance sheet, or the net share capital can be presented, in which case the outstanding claim is deducted from the total equity. The outstanding claim can also affect the auditors opinion, if there is significant doubt regarding the company’s ability to continue as a going concern, as a result of the uncertainty of the claims recoverabilty. In conclusion it can be argued, that the administrative burdens of the company are not reduced when the share capital is only partially paid. There can be several administrative burdens regarding the registration of the shareholders’ payments, the managements summons of the outstanding share capital, and the legal remedies regarding suspension of the statute of limitations. Instead of founding a private limited company (A/S) and postponing part of the payment of the share capital, it could be more beneficial to found a limited liability company (ApS) with no outstanding share capital, in that there are only minor legal differences in the regulation of these two types of companies according to the Danish Companies Act.

UddannelserCand.merc.aud Regnskab og Revision, (Kandidatuddannelse) Afsluttende afhandling
SprogDansk
Udgivelsesdato2012
Antal sider89