when company decides toincrease your social capital, it has several ways to do this. One of these methods is the use ofcontributions in kind. In this case, the law requires the intervention of a commissioner of contributions for a specific mission. However, there are exceptions to this obligation. Foundation-company-ricard produced an exhaustive file devoted to the intervention of the contribution auditor during a capital increase by contributions in kind.
Is the use of a contribution auditor mandatory in the event ofshare capital increase ?
When the capital increase is carried out, in whole or in part, throughcontributions in kind, the company that benefits from it must necessarily designate un commissioner of contributions. These can be made of tangible or intangible, movable or immovable property.
SARL partners can break free the services of a contribution auditor if:
- No contribution in kind exceeds €30,
- The total value of contributions in kind does not exceed 50% of the capital.
This decision must be taken unanimously by the partners. The latter then retain responsibility for 5 years vis-à-vis third parties for the value attributed to the contributions in kind.
SA shareholders do not benefit from the same immunity. It is possible when they consent to the following contributions:
- Transferable securities giving access to capital or monetary instruments valued according to the weighted average price (transaction on regulated markets during the last 3 months preceding the contribution);
- Other assets that have already been valued by a contribution auditor in the last 6 months preceding the implementation of the new contribution.
In the absence of provisions to the contrary, these rules also apply to SAS.
What is the status of the contributions auditor for a capital contribution?
For a capital increase by contribution in kind, it is not allowed to appoint as contribution auditor (CAA) the auditor of the beneficiary company. Indeed, the Commercial Code excludes a coincidence between the two functions and any violation is punishable by fine and/or imprisonment.
Le commissioner of contributions must therefore be selected from:
- The registered auditors,
- Where the experts present on one of the lists of courts.
How to appoint the contributions auditor for a capital increase?
La appointment of the contributions auditor Made by political consensus of associates to shareholders. In the absence of an agreement, it is the president of the commercial court who makes the selection, at the request of the manager. This may be the manager, the chairman, the general manager or the chairman of the management board.
If the leader does not react, any interested party, as a shareholder, has the right to apply.
The law does not require the signing of a contribution contract before the filing of the request. No particular condition is required in this regard.
What are the duties of the contributions auditor during a capital increase?
Le commissioner of contributions is responsible for determine la just value contributions made. As such, he must decide on the assigned value contributions in kind by the partners. To do this, he may be assisted by one or more professionals and get all documentation considered useful.
Once its mission has been completed, the CAA issues a investigation report where he expresses his opinion on the assessment of contributions. This must be:
- Remis at the registry of the commercial court at least 8 days before the date of the extraordinary general meeting;
- Et attached to the final validation procedure for the operation.
What are the consequences of an overestimation of contributions in kind?
Le auditor's report does not bind not the associates or shareholders of the company. The latter can stick to their estimate, if it is different from that proposed by the professional. They then remain bound by this value with respect to third parties for 5 years.
Nevertheless, special attention must be paid, because an overvaluation can constitute a fraudulent increase in contributions in kind. This offense is punishable by 5 years imprisonment and a fine of €375.
Do you want to increase your capital? Use our partner service: I change my capital!
To read also in the extension of this file:
- What are the formalities to be completed in the event of a capital increase? ?
- How much does a capital increase cost ?
- How to increase the capital of an SAS ?
- What are the steps to increase the capital of an LLC ?
- How to increase the capital of a SASU ?
- What is the procedure for increasing the capital of an EURL ?
- Can you increase your capital online on the Internet? ?
What is the role of the auditor?
Réponse:
The contributions auditor is responsible for verifying the amount of contributions paid by shareholders during a capital increase and ensuring that the partners concerned have respected their commitments.
What is the contribution auditor's role during a capital increase?
Réponse:
The contributions auditor is responsible for verifying contributions in cash or in kind and ensuring that the shareholders have respected their commitments. He verifies that the actual amount of the contributions is consistent with that declared in the deed of the capital increase. He also ensures that the statutes of the company are respected.
