Непарична вноска в капитала на търговско дружество /апорт/. Правно основание и начин на performance
When establishing a commercial company or deciding to increase the capital of an already established commercial company, the partners must contribute some property to the company, in exchange for which they will acquire membership rights upon registration or, respectively, from the capital increase portion. The property of each commercial company is formed from two types of contributions – monetary and non-monetary.
There is no problem in understanding the nature of cash contributions—a certain amount of money is deposited into a collection account or the company’s account, after which the increase is entered in the commercial register.
In this article, we will examine the conditions and prerequisites under which a non-monetary contribution to the company’s capital can be made, the subject of the non-monetary contribution itself, as well as the manner of making the non-monetary contribution, with a focus on commercial companies.
Essence of non-monetary contribution to capital
The law provides for the possibility of transferring ownership of a specific item or other right to the capital of a commercial company. A non-monetary contribution to the capital is compensatory in nature and, after the contribution, the company becomes the owner of the property or other right contributed by the partner, who in return acquires a share in the company’s capital. A non-monetary contribution may be made both at the time of incorporation of the commercial company and at a later date when a decision is made to increase the company’s capital. Non-monetary contributions are permissible for all types of commercial companies.
It is a mandatory requirement of the law that non-monetary contributions be described in the articles of association or in the statutes when it comes to joint-stock companies. The description must contain information about the name of the contributor, a full description of the non-monetary contribution, the basis for the contributor’s rights, and a monetary valuation of the contribution made.
Subject of non-monetary contribution
The subject of non-monetary contributions is extremely broad, with the characteristic feature of all types of non-monetary contributions being that something other than cash is contributed. These contributions can be very different, such as bond rights representing a claim under various contracts (lease, loan, etc.), inheritance, a commercial enterprise or part of a commercial enterprise, securities, property rights over movable or immovable property. Interestingly, intangible rights such as copyright, industrial design, license, patent, and others may also be the subject of a contribution.
The law prohibits non-monetary contributions solely in the form of future labor or services. This is because such claims by the company cannot be enforced. It is important to note here that the contribution will be null and void in the event of legal or factual impossibility to transfer the subject of the contribution, as well as in the event of an impossible subject of the contribution (for example, a vehicle is contributed, but it no longer exists at the time of contribution). Furthermore, a right of use cannot be the subject of a non-monetary contribution. This is due to its inalienability and strictly personal nature.
Method of making a non-cash contribution
The legislator determines the procedure and requirements for making a valid non-monetary contribution. When individualising a non-monetary contribution, it must be fully described in the decision of the general meeting taken to make the contribution. This decision must also specify the person making the contribution and the source of the rights that they intend to transfer by making the contribution.
When making a non-monetary contribution, it is mandatory for it to have its own valuation. When it comes to making a non-monetary contribution to the capital of a commercial company, this valuation should be made by experts who have the legal capacity to do so. The valuation here is a separate protective procedure that takes place before the Commercial Register. As part of this procedure, the registration officer appoints three independent valuers to carry out the valuation.
A non-monetary contribution may be recorded in the company’s capital and in its articles of association up to the amount of the valuation given by the experts. The purpose of the latter is to preserve and guarantee the rights of creditors that the company will not be decapitalized at the time of registration of the non-monetary contribution. The experts’ conclusion must contain certain requirements that are expressly specified in the law. This conclusion is part of the documents that must be submitted in the proceedings for registration of the contribution itself upon the establishment of the company or, respectively, upon the increase of the capital.
The contribution ends with its entry in the Commercial Register. The purpose of the entry is to publicly announce that the transfer of the contributed rights has taken place, with the registration judge certifying that the contributor is indeed the holder of the rights contributed to the company’s capital.
If the subject of the non-monetary contribution is ownership rights to real estate, after entry in the Commercial Register, an entry must also be made in the Property Register. The purpose of this entry is to make the contribution enforceable against third parties who have acquired the same right from the same owner. A contribution of real estate that is not entered in the Registry Agency cannot be enforced against third parties.
Contribution of real estate as an in-kind contribution
Special attention should be paid to the fact that when making a non-monetary contribution involving property rights, the contribution may be made both in the form of ownership rights and in the form of rights of use by the company.
!!! IMPORTANT In the case of a non-monetary contribution to the capital of a commercial company with the subject of ownership of real estate, the ownership of the real estate is in fact transferred. This transfer is exempt from VAT and local tax payable to the municipality on the transfer of real estate.
!!! IMPORTANT When transferring ownership rights to real estate, it is not necessary to comply with the special form of the transaction as a notarial deed. In this situation, ownership of the real estate is transferred by entering a notarized extract from the articles of association or the charter of the joint-stock company in the property register after the contribution has been made and entered in the Commercial Register.
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