Société à responsabilité limitée
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A Société à responsabilité limitée, also known by the acronym SARL (sometimes SÀRL or Sàrl), is a form of private limited liability corporate entity that exists in France, Switzerland, Luxembourg, Algeria, Morocco and Tunisia, and has commerce as its purpose.
A SARL is a company whose liability is limited to the contributions of its members. Shares are not freely transferable, transfers requiring the agreement of all shareholders. The SARL is broadly equivalent to the private company limited by shares in the United Kingdom and the corporation in the United States
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[edit] France
Since the law of July 11, 1985, SARL has two variants: SARL pluripersonnelle (at least two associate s) and the EURL (one Associate ). The Company exercise Liberal limited liability, contrary to what is his name, not a limited liability but a Society exercise Liberal (SALT).
There are now nearly 1 500 000 SARL, which is the two-thirds of all commercial companies. The SARL is particularly suited for small and medium enterprises.
The SARL can be broken in various complementary forms, depending on the activity and associates concerned, which can bring various benefits in terms of taxation (among others): SARL with variable capital, SARL press, or the SARL family.
An LLC is a society where there are two people who create minimum. In addition, the company is chosen by the people who need to make investments but who do not want to be taxed.
[edit] History
The SARL, whose legal character is somewhat ambivalent because they can not qualify or personal corporation or capital company, was developed in Germany (GmbH) by a law dating from 1893. Since 1925, the legal form of limited liability company is also legalized in France.
[edit] Legal Characteristics
- -Capital
- Deleting a minimum capital: The Law for economic initiative of the 1 (()) er in August 2003 has removed the minimum capital requirement of which was 7 500 €, so it is statutory to open a company with a capital of one euro. However, the share capital is a sign of confidence vis-à-vis banks and lenders or creditors. It is also an index for partners, because there will be more likely to do business with a company with a capital important because in case of problems, the partners are required to losses of benefits in the capital. However, the health of society is not properly rendered by the social capital and it is better to take cognizance of its accounts and balance sheets.
The capital is divided into shares and its distribution is mentioned in the statutes. This will include organizing the distribution of power within societies (combined majority and minority vote in the important decisions). The shares shall be subscribed to by all partners. They must be fully paid when they represent contributions in kind.
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- Contributions in cash should be released at least one fifth of their value. The release of surplus occurs in one or several times on a decision of the manager, in a period not exceeding five years from registration of the company in the register of companies. However, the share capital must be fully discharged before any purchase of new shares to be released in cash, under penalty of nullity of the transaction.
- Contributions in kind (goods, inventory, receivables ,...) must be made immediately.
- Contributions in industry are now allowed (special competence, "tour de main, expertise), but they do not fall in the amount of Capital social. They can, however, acquire the status of associate and participate in sharing profit. Where appropriate, the statutes determine the method by which can be purchased shares in industry.
- Associates (individuals or legal)
- Minimum: 2
- Maximum: 100
- Their liability is limited to their contributions.
[edit] Establishment of a SARL
[edit] Statutes
- The general elements of contract
- consent rules of common law
- capacity
- Associates no trader s: civil capacity is enough to be involved. An emancipated minor, a major protected, 2 spouses, a foreigner may be involved. The legal persons may also be involved.
- Noincompatibilityorbanwould limit access to a limited liability company.
- L subject:
- SARL is necessarily commercial whatever its purpose
- Some activities are prohibited: insurance companies, capitalization companies, banks.
- Some activities are reserved for other types of companies: portfolio management, securities, investment companies
- Some activities are reserved for SARL: real estate company management
- Some activities are carried out in SARL under certain conditions: SARL public accountant, legal advice
- Contracts to specific elements of society
- The number of partners: 2 to 100. If the number is equal to 1 partner, there is a transformation EURL. If the number of members exceeds 100, there are adjustments in the year if the company is dissolved or corrected in SA.
- The capital: it is freely set in the statutes (formerly, the minimum capital was 7 500 €); he may be released in whole or in part, on a maximum of 5 years. Subsequently the creation, capital can be increased ( capital increase).
The capital is composed of provision s:
- The shares representing contributions in cash must be paid at least 1 / 5 ((e)) of the amount. The subsequent release occurs in one or several times on the decision of the manager within a period not exceeding 5 years from registration. Filed in 8 days with a notary, a bank or the Fund deposits and deposit. Ability to resume fund if not constitution within 6 months of payment.
- Regarding the contributions in kind, status s must contain the evaluation. A Commissioner for contributions was appointed unanimously by the prospective partners or by order of President of the Commercial Court, a commissioner prepare a report attached to the statues. This obligation does not exist when the value of any contribution exceeding 7 500 € and that the total value of contributions in kind does not exceed half of capital. The evaluation calls for joint responsibility of members to third parties if there is no external input or if the partners have chosen a value greater than the value advocated by the Commissioner of inputs.
- Contributions in industry are authorized since 2001 (Act NRE) without restriction. But the provision is not entitled to shares, but shares in industry. These are the statutes which will then establish the wage conditions. If the statute does not set the amount of profits and losses will be equal to the partner who has the least shares.
The capital is represented by shares:
The subscription and the total liberation of the shares must be made to the constitution ie the signing of the statutes.
The distribution of shares must be mentioned in the statutes. The distribution of profits and losses is not necessarily proportional to the shares but participation losses can be greater than the parts.
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- Specific elements of the society: participation in the profits, affectio societatis name, duration, ...
[edit] Formal requirements and advertising
- Status s:
They must be written (in private or by deed) and be signed by all partners.
In addition to the information common to all societies, we must include SARL for the valuation of contributions in kind, the choice of managers and the distribution of powers, the transfer of shares, modes of consultation with partners and distribution patterns profits.
In Annex, adding the Commissioner's report to the contributions and the state of acts performed on behalf of the company being formed.
- The past acts on behalf of society not yet registered
The persons acting on behalf of the company are jointly and severally liable for the consequences of their actions unless the company, having been formed and registered, not to resume their commitments in his account. These commitments are then deemed to have been made from the outset by the company.
There are 2 automatic processes: acts annexed to the statutes and acts provided by the statutes.
- The publicity measures
The statutes must be made to the recipe of taxes within 30 days of signature.
Insertion in a Journal Ad use.
Linkages with the Official Gazette of civil and commercial ads.
Registration to Register of Companies.
[edit] Taxation
The SARL is subject to the corporate tax.
Option: if all members are individuals and family members (spouse and / or children), SARL may opt for income tax (IR). In this case, the benefit is systematically divided between partners and added in the statement of income each.
For the manager of the company, there are two separate systems of social protection: the status of minority or egalitarian manager and managing Majority status which is determined by the number of shares held by the manager, his spouse and minor children not emancipated. The manager is a minority if it holds less than 50% of shares; egalitarian it owns 50% of shares (same status as the manager minority); majority if it holds more than 50% of shares. Warning: if cogérance, it combines the shares held by all managers to determine their respective social status.
The status of minority manager or egalitarian
It is likened to that of an employee under the social protection and benefits under the general scheme of Social Security. In egalitarian status as manager is likened to that of the minority.
It is possible to combine the function of managing minority with the quality of employee. The manager needs to meet the following conditions:
- Hold a position of actual work;
- Engaging in an activity separate from the stewardship;
- Be paid a salary;
- Work in a subordinate relationship.
Note: The existence of a relationship of subordination may not be possible in case stewardship minority or egalitarian.
The status of manager Majority
It is likened to that of a shopkeeper. It has, indeed, the same social protection scheme that self-employed (TNS).
It can not combine an employment contract with its function Manager in the same company.
[edit] Appointment of leaders
The leaders of SARL are called "manager s". Any SARL has at least one manager. The manager or managers are appointed by the statutes (statutory managers) or by decision of shareholders representing more than half of Capital except majority strongest provided by the statutes.
[edit] The partners of a limited liability
The associate s of a limited liability company (between 2 and 100) have not the quality of trader and may exercise within society gainful activity. As for any legal form, the partner has rights and obligations.
[edit] Increase, reduction, transformation, dissolution
[edit] The capital increase
In the law of 24 July 1966, there are few specific provisions on the capital increase of SARL. Accordingly, it should be guided by the provisions applicable to the SA.
- The increase through contributions
Contributions in cash ** The capital increase will be decided by the extraordinary general meeting since modification of statutes with a majority of 3 / 4 shares. If the statutes have expected, the decision may be taken by written consultation.
At the first consultation, the Assembly must decide on the most significant (amount, number of shares, amount of the premium ,...). The manager is responsible for underwriting and release of funds since the full liberalisation is required immediately.
The second consultation endorses the capital increase and amend the statutes.
If the increase is not achieved within 6 months, 1 (()) er deposit funds, providers can reclaim their deposits.
When subscribing to a third, the recognition is necessary.
For spouses common property, it is necessary to notify the spouse under penalty of nullity of the contribution.
Regarding publicity:
-- Registration of Minutes of the meeting
-- Insertion in a newspaper ad legal
-- Filing at the Registry (Minutes of the meeting, statutes, declaration of conformity)
-- Amending the request RCS
-- Insertion BODACC
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- Contributions in kind
The contribution in kind of property must result in a written contract.
The procedure is similar to that which exists in the constitution: it is estimated intakes in a report to the statutes under the responsibility of a Commissioner of contributions. The contract provision must be approved by shareholders.
Regarding publicity, same as for the increase in contributions in cash but in addition to filing the report of the Commissioner of inputs at the court of commerce.
- Compensation claims in shares
Either by contribution in kind or by way of compensation.
Claims must be some offset and payable. Furthermore, this possibility should be provided by the special meeting, which decides on the increase.
- Increase by incorporation of reserves, premiums and benefits
The decision to make such a capital increase is validly made by shareholders representing at least half the shares and not 3 / 4. The formalities are identical to those of an increase in contributions in cash.
[edit] The reduction and loss of capital
the Act of 1 August 2003 repealed the exigeance that, except transformation of the limited liability company in another form, reducing the capital below the legal minimum can be decided only under the condition precedent ' a capital increase intended to bring at least at this level.
we have to refer to rules on the reduction of the share capital of limited companies:
- Nature and motives of the operation:
the capital reduction is planned in two hypthèses during the life of society 1st assumption: the company reduced its capital by repayment of contributions. it believes that its capital is too important to the needs of its cash. this case is uncommon, it occurs only in societies that have reduced their activity. reducing capital not motivated by losses is fraught with tax consequences. 2nd hypothesis: the company has suffered losses such as depreciation by charging on the future profits seems unlikely, and in any case, makes it impossible to distribute dividends during the duration of such amortization, or society wants to clean up its financial situation and proceeds to reduce its capital to offset all or part of the losses.
- Distinction with the depreciation of capital:
depreciation of capital is an operation whereby the company to reimburse its shareholders all or part of the nominal amount of their shares. where possible, this operation is decided by the AGE (C. Com, art L.225-198) and is conducted by prélevements on profits or on résèrves. depreciation is a refund of contributions, as an advance on the bonus liquidation, without changing the capital.
- Condition of the operation:
EGM decision on reports from the auditors. equal shareholders: the operation may affect the equality of shareholders Creditors of receivables prior to the decision may oppose the capital reduction motivated by losses. Otherwise, they have a period of 20 days after the deliberation of the AGE to oppose this procedure. the opposition is brought before the Tribunal de Commerce which can reject it, order the repayment of debts or declare the constitution guarantees.
[edit] Transformation
If the company turns into general partnership or civil society, it requires the unanimous agreement of members.
If the company turns into SA, there are conditions. A deliberation associates representing at least 3 / 4 of shares is required. The balance sheets for last 2 years must be approved by shareholders.
East demanded a report of a commissioner on the state of society. In addition, the manager will ask the President of the Commercial Court to appoint a commissioner for processing (which may be the the auditor). The Commissioner appreciates the value of property comprising the assets and advantages for the benefit of the partners or third parties. He presented a report in which it certifies that the amount of equity is at least equal to the share capital. In practice, it may be responsible for preparing the report on the situation of society.
The SARL, which turns into SA must follow the rules of the SA-7 partners at least, the capital, the appointment of an auditor, changing statutes, the conversion of shares in actions and respect the formalities of advertising.
[edit] Dissolution
- Causes common to all societies
Check the term extinction of the object, liquidation, cancellation of the contract of society, decision associates.
- Other causes
The company is automatically dissolved after 1 year if the number of members exceeds 100, if the capital is less than the legal minimum; loss of half the capital.
However, the limited liability company is not dissolved by the death of a partner (or his disability, his personal bankruptcy ...).
The limited liability company is dissolved when it includes more than 100 partners and that the situation could not be corrected within the period of 1 year or if the partners could not validly deliberate on the decision to be taken following the loss of half the capital or were unable to regularize the situation within 1 year.
[edit] In Switzerland
[edit] Legal Characteristics
The SARL is defined in the Code of Obligations article 772 et seq. Aside from these articles, they are those of the public limited company will prevail (art.620 et seq).
- Capital
- Associates
- now one person can be a SARL
- maximum of 100 associates
- Bonds
- Last statutes: name, the company's headquarters, subject to the company, amount of capital and the share of each partner, to observe form for publications. (art. 776)
- Registration Register Trade
[edit] Taxation
The SARL and his associates are taxed as an limited liability company, ie a tax on income and wealth tax.
[edit] Organization
The shareholders' meeting is the supreme power of the SARL. The partners are managers and representatives of society, but can delegate the management and representation at third if the statutes allow.
The responsibility of the founders, managers, auditors and liquidators is subject to the rules of the SA. (art. 827)
