After the initial impact has meant not suspend the application of Article 348 of bis Capital Companies ActIt seems appropriate to reflect on some of the aspects that will be very far-reaching in terms of the practical application of that legal precept.
Recalling the legal framework (as described in our article: If no dividend distribution, you can go), The same set of game rules that require triple circumstances to require the separation of society by the partner:
- 5 years have passed since the registration of the company in the commercial register.
- Partner have voted in favor of the dividend on the board of partners.
- The Board members agreed not to distribute at least one third of the profits of the legally distributable exploitation.
In this regard, it will be very important to determine what the amount to be taken into account as the basis of benefits when calculating whether the dividends declared by the Board or not the minimum legally established.
What specifically states the legal precept referring to them is "profits of the exploitation of the social object", a concept that is not explicitly differentiated in the annual accounts or the income of the Company, which is a first major problem.
When determining the same seems clear that should be eliminated extraordinary or atypical benefits, but it is also true that in the few statements that have been on the subject, our Jurisdictional Organs have attended other very different criteria such as the repetition or no such income in the accounts of the company or whether or not it is a significant amount, for example.
Thus, the determination of "profits of the exploitation of the social object" of society can be an issue at all is simple and requires a proper examination and counseling by professionals.
Also it should be noted that the valuation of the shares will be in accordance with the provisions of Article 353 Capital Companies Act, indicating the same that in the absence of agreement between the partner and the company, they will be valued by an auditor of accounts different from that of the company designated by the Commercial Registrar.
A final reflection, from the standpoint of the company itself with partners that may demand the dividend or separation of the company, refers to the need for the company's managers to take into account in their accounts the impact and consequences that a or another will have in their accounts if it occurs. In many cases this can be a matter of extreme importance for the viability of society.
The above questions about the Capital Companies Act require adequate legal, financial and accounting advice, all areas in which we enjoy more than enough and proven experience and which can therefore help them for proper advice.
About the Author:
Marcos Jiménez de Parga