An approach to a very current operation.
The entry into force of the new tax regime applicable to Private Civil Societies (SCP) with a commercial purpose that occurred on January 1, 2016, under which from that date they become subject to Corporate Income Tax instead of Personal Income Tax via attribution of income to their partners as before, has led many SCPs to consider the possibility of transforming into a Limited Company (SL).
The transformation is a commercial transaction whereby a company (in this case, the SCP) changes its legal form, adopting a different corporate type (in this case, that of a SL), while retaining its legal personality. Its regulation is not contained in the Capital Companies Act but in Law 3/2009, of April 3, on structural modifications of commercial companies.
Before outlining the steps involved in carrying out the transformation, it is worth noting that this option offers a clear advantage over other alternatives available to the partners of a limited liability company (SCP) with a commercial purpose to address the change in tax regulations (specifically, its dissolution and liquidation followed by the formation of a limited liability company (SL) to carry out the same activity): the preservation of its legal personality. This means that despite the change in the company's legal form, the company remains the same, and consequently, all its rights and obligations are maintained (e.g., relationships with suppliers, lease agreements, employment contracts, etc.).
Focusing now on the main features of the process for transforming a SCP into a SL, it should be noted that the transformation agreement must be adopted unanimously by the partners' meeting. However, prior to holding the meeting, the directors must make the following documentation available to the partners:
– Report from the administrators explaining the legal and economic aspects of the transformation.
– Company balance sheet closed within the six months prior to the date of the meeting.
– Draft articles of association of the limited liability company resulting from the transformation.
The Board will have to approve the transformation balance sheet as well as the future statutes of the SL.
Once the transformation is approved, that agreement must be published in the BORME and in one of the newspapers with large circulation in the province where the company has its registered office, a procedure that may be replaced by a written communication to the company's creditors.
One month after these publications, the public deed of transformation may be granted, in which the required information for the constitution of a SL must be stated (share capital, member partners and shares they hold, administrators, declaration that the capital is paid up and that the company assets cover the share capital, having obtained a company name from the Central Commercial Registry, etc.).
Finally, it should be noted that the transformation will not be effective until the deed of transformation is registered in the Commercial Registry.
Andreu Pujol
Commercial-Insolvency Area
Àmbit Assesor
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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