How to establish a company telematically in Barcelona Activa

Transcription

1 DOCS How to establish a company telematically in Barcelona Activa Telematic processing through the PAIT Access to the telematic processing service Features of the SLNE Costs and payment methods Example of open-ended articles of association Documentation needed to process telematically Barcelona Activa SAU SPM,

2 01. Telematic processing through the PAIT From 2003 the regulatory guidelines of Limited Companies offer the possibility of carrying out the process of constitution and establishment of an SLNE (Limited Company New Company) telematically, saving the business owner journeys, time and expenses. This possibility of using telematic processing was extended to Limited Companies in However, at present in Catalonia, only SLNEs can be set up telematically. The advantage of telematic processing is faster establishment of the company, avoiding trips and saving time, because all of the required components for establishment are involved, allowing for communication and speeding up of the process. Example: - In-person processing: Central Business Register Notary AEAT Catalonian Government taxes Provincial Business Register AEAT TGSS = approximately 40 days - SLNE processing done telematically: PAIT Notary CIRCE (AEAT Catalonian Government taxes Province Business Register TGSS) Notary = 48 hours Telematic processing is made through a PAIT (Business Creation Advisory and Initiation Points), which is an office dependent on Public Administration and public and private bodies. The PAITs begin the administrative process of setting up a company through an SED (Single Electronic Document), which contains all the necessary information for the constitution. The individual responsible for the PAIT enters the information in the Single Electronic Document (SED). Among other functions, the SED generates the company name of the new company and makes an appointment with a notary. Finally, the breakdown of payments, wages and taxes is given to the business owner, along with the date when they must go to the notary office to get the memorandum of association. Once the memorandum of association is certified by the notary, the telematic system will carry out the procedures to: - Obtain the provisional CIF (AEAT) - Clear the asset transfer tax (Tax Office of Catalonia). - Register the business in the Provincial Business Register. - Register business owners and employees with Social Security, if necessary. - Acquire the definitive CIF. 2 / 15

3 02. Access to the telematic processing service To access the service of telematic establishment of an SLNE offered by Barcelona Activa, the following is required: 01. Attendance at the course How to set up a company - Course content: - What is a SLNE? - Required documents to set up a SLNE - Tax liabilities 02. Assessment, by the expert counsellor team of Barcelona Activa, of fulfilment of the establishment requirements. 3 / 15

4 03. Features of the SLNE Company Name: The company name must be comprised of: - The family names and name of one of the partners. - Followed by an alphanumeric code of 10 digits and 1 letter - SLNE For example: Ribó Mas, Núria B, SLNE. Once the business name is constituted before the notary, it can be modified free of charge for a creative name (for example, Barcelona Consulting, SLNE) within a period of three months. It will only be free as long as it does not involve notary fees or registration in the Business Register. Share Capital: Minimum: 3,012 - Maximum: 120,202. The share capital is comprised of the investments of the partners, investments in cash, goods or rights. At the time of establishment, the minimum share capital of 3,012 can be in cash. Corporate objective: The corporate objective must be generic (for example, commercial activity; services activity; intermediary activity). Partners: 03. The partners must be individuals. 04. The number of partners at the time of establishment of the company cannot exceed 5, but after establishment, this number can be higher. 05. It is possible to incorporate single-member SLNEs, but those who are already single members of an SLNE cannot become the single member of a new one. Articles of Association Open-ended Articles of Association can be used. The use of these articles grants the possibility of constituting and registering the company in the Business Register in 48 hours. 4 / 15

5 Decision-making bodies: Partners General Meeting: This is the body with the most decision-making powers. It is a deliberating body, and agreements are reached by majority vote. Administrative body: In an SLNE, the administrator must be one of the partners. This person can carry out the task for an unlimited period and can be remunerated. The administrative body must be structured according to one of the following methods: 06. Single Administrator. 07. Two or more administrators who can act as joint and several administrators, but not as Governing Board. Modifications of the Articles: Only the following features of the articles can be modified - Company name. - If the partner whose name appears in the company name is no longer a partner, the company must immediately modify the company name. - Address. - Share capital within the limits established ( 3,01-120,020). If the share capital exceeds the maximum limit ( 120,020), the legal status must be modified. Equity participation The voluntary inter vivos transfer can only be made to individuals. As a consequence of the transfer, the number of partners can exceed the initial maximum of 5. If a transfer to a legal entity takes place, it should be alienated in favour of an individual within 3 months following the transfer. Otherwise, the SLNE will be considered a Limited Company, without prejudice to the responsibility of the administrators to adopt the corresponding agreement. 5 / 15

6 Tax Privileges Business Savings Account: Taxpayers will be allowed a deduction for the amount deposited in credit unions (always in accounts which are separate from any other taxation) for the establishment of an SLNE, in agreement with the following requirements: - The balance of the account must be dedicated to the subscription as founding member of the equity participation. - The company, within a maximum period of 1 year from its establishment, must dedicate these funds to: Acquire tangible and intangible fixed assets exclusively involved in the operation. Constitution and first establishment expenses. Expenses of employed staff with working contract. - In any case, the SLNE within a year must have: Premises exclusively devoted to manage the operation. An employee with a working contract and full working day. The deduction will be of 15% over a maximum base of 9,000 per year. - Moreover, the SLNE, in the 2 years following the start of the operation, must keep: The economic operation which its corporate purpose consists of. Premises exclusively devoted to the operation. An employee with a working contract and full working day. The assets in which the balance of the savings account has converted. - The right of deduction will be lost if: The amounts deposited in the business savings account are not dedicated to the constitution of the company. 4 years from the opening of the account go by without registering the new SLNE in the Business Register. The conditions that give the right of deduction are not met. Each taxpayer can only have one business saving account. 6 / 15

7 Deferral of the ITPAJD (asset transfer tax and legal documented act tax) - corporate activities The new company can request, without providing any guarantee, the deferral of the tax liability resulting from liquidation of the ITPAJD, during a period of 1 year from establishment. The amount deferred will be due with interest payment in arrears. Deferral of Corporate Tax The SLNE can request, without providing any guarantee, the deferral of the tax liability resulting from liquidation of the Corporate Tax, during the first 2 financial years from establishment. The amount deferred will be due with interest payment in arrears. Exemption from the obligation of fractioned payments The SLNE will not have the obligation to pay fractioned payments of Corporate Tax during the first two complete financial years from establishment. Deferral or division of the amounts resulting from account deductions and income The amounts corresponding to account deductions and income from personal income tax due during the first year can be deferred or paid in fractions, if the business owner applies for this option beforehand, and with no need to provide guarantees. The amount deferred will be due with interest payment in arrears. 7 / 15

8 04. Costs and payment systems Costs of constitution of a SLNE (minimum share capital: 3,012 ) 01. Central Business Register (company name): Notary (approximately): (constitution and appointment of the administrative board included). 03. ITPAJD (1% of the share capital): Province Business Register (approximately): (constitution and appointment of the administrative board included). Consequently, it can be said that the approximated cost of the telematic constitution of a SLNE is between a minimum of and a maximum of 1, Payment methods: 01. A. Company name: this is paid at the time of processing by Visa, MasterCard or American Express card (you will need the card number, the expiration date and the code CVV2/CVC2). 02. B. Notary: it is paid in the Notary Office. 03. C and D. Number of bank account for the payment of the registration in the Business Register. 8 / 15

9 05. Example of open-ended articles of association The use of this model of articles of association, which appear in the Order JUS/1445/2003, of June the 4th, grants the possibility of constitution and registration in the Business Register within a period of 48 hours. Model of Articles of Association I. GENERAL PROVISIONS Article 1.- Company name The SLNE (Sociedad Limitada Nueva Empresa), of Spanish Nationality, is registered in the name ***** ****** ***** *********, SLNE It will be regulated by these articles, or failing that, by the provisions of the 12th Chapter of Law 2/1995, of March 23rd, and, in those aspects not established in it, by the other provisions that may apply to Limited Companies. Article 2.- Objective The company exercises commercial activities. If any of the activities mentioned require it, the activity should be carried out by qualified professionals and, in other cases it should be carried out after receiving the corresponding authorizations or administrative licenses. Article 3.- Duration The company is established for an unlimited period and its corporate activities will begin the day when the public deed of registration is issued. Article 4.- Registered Office The company has its address in Barcelona, ******* The administrative board can establish, eliminate and move branch offices, agencies or delegations to any part of the Spanish territory or abroad and change the registered office within the same city. II. SHARE CAPITAL Article 5.- Capital The share capital of the company is ****** Euro. This share capital is divided into ***** equity participation, all of them of equal value, accumulative and indivisible, each with a nominal value of *** Euro, correlatively numbered starting from the union. Article 6.- Transfers 9 / 15

10 A) Voluntary inter vivos transfers.- Voluntary inter vivos transfers of equity participation will be unrestricted, for good and valuable consideration or free for another partner, or the spouse, descendant or ancestor of the partner. The other inter vivos transfers are subject to the provisions of the law. B) Mortis causa.- Mortis causa transfers of equity participation will be unrestricted, whether it is through inheritance or legacy to another partner, or the spouse, descendant or ancestor of the partner. In other situations, the remaining mortis causa transfers of equity participation, the surviving partners, and in the absence of these, the Company, will be granted the right of preferential acquisition of the equity participation of the deceased partner, valued according to the reasonable value of the same, the day when the partner deceased and the amount that will be paid in cash. This right must be exercised within the three months following the communication to the Company of the hereditary acquisition. If there is no agreement on the reasonable value of the equity participation, or on the person or persons who have to value them, and the process that should be followed to value them, the equity participation will be valued according to the provisions of Article.100 Law 2/1995 of March 23rd. If the right has not been exercised after the mentioned period, the hereditary acquisition will be consolidated. C) Common rules The acquisition, by any title, of equity participation, must be communicated in writing to the administrative board of the Company, specifying the name or company name, nationality and address of the receiver. 05. The scheme of equity participation transfer will be valid from the date when the partner communicates to the Company the intention of transferring or, where appropriate, from the date of the partner's death or the date of the legal or administrative adjudication. 06. The transfers of equity participation which do not adjust to the provisions of these articles will not affect the Company in any way. III. DECISION-MAKING BODIES Article 7.- General Meeting A) Summons.- General meetings will be summoned through registered post with acknowledgement of receipt sent to the address previously communicated by the partners to the administrative board (or through a telematic communication sent to the address previously communicated by the partners to the administrative board). B) Reaching agreements.- Company agreements must be reached by a majority of valid votes, as long as they represent at least one third of the votes corresponding to the equity participation in which the share capital is divided, and not counting blank votes. 10 / 15

11 However, and as an exception to that stated in the previous section, favourable voting will be required: a) From more than half of the votes corresponding to the equity participation in which the share capital is divided, for agreements concerning the increase or reduction of share capital, or any other modification of the Articles of Association for those who do not require the qualified majority in the following section. b) From at least two thirds of the votes corresponding to the equity participation which the share capital is divided into, for agreements concerning the increase of the share capital over the maximum limit established in the Article.135 Law 2/1995, of March 23rd 1995, for agreements on the transformation, fusion or division of the Company, on the elimination of the preference right in the increase of share capital, on the exclusion of partners, on the authorisation to the administrators to allow them to work, self-employed or for another company, in the same, similar or complementary type of activity established as the corporate objective. c) If the Company is a single-member company, the single partner will exercise authority at the General Meeting, in which case his or her decisions will be registered in the minutes of proceedings, under his or her signature or the signature of the representative, and can be executed and formalized by the partner or by the administrators of the Company. Article 8.- Administration board: organisation 07. The administration of the company can appoint a single-member board (singleadministrator) or a non-corporate multiple-member board (several administrators that act jointly and severally) and whose number cannot exceed five. 08. The general meeting, by qualified majority and without implying a modification of the articles, has the power to select any method for organising the administration of the Company. 09. In order to be appointed as an administrator the candidate must be a partner. 10. The administrators will exercise their position for an unlimited period, unless the General Meeting, after the setting-up, establishes their appointment for a limited period. 11. The General Meeting can decide if the position of the administrator is remunerated, along with the amount and payment method. Article 9.- Power of representation Regarding the different types of administrative body, the following regulations are established: 12. In case there is a single administrator, the power of representation will correspond to him or her. 13. In case there are several joint administrators, the power of representation will correspond to each one of them. 14. In case there are several joint administrators, the power of representation will correspond to any two of them and will be exercised jointly. 11 / 15

12 Those who cannot occupy or exercise positions in this Company are included in any of the prohibitions or incompatibilities established by the Law 12/1995, of May 11th 1995, and by other legal, national or autonomic provisions in the measure and conditions established by this law. Article 10.- Authorities The administrative board is responsible for the management and administration of the company and for the complete and absolute representation of the company, inside and outside of the courts. Therefore, apart from those acts which are the authority of the general meeting or which are excluded from the corporate objective, the power of representation of the administrators and of the authorities must be understood with the largest extension to contract in general and to perform all types of acts and business, obligations and mechanisms of ordinary or extraordinary administration and with strict control, regarding all types of movable and fixed assets, shares and rights. IV. FINANCIAL YEAR, FINANCIAL STATEMENTS Article 11.- Financial year The financial year begins on January 1st and ends on December 31st each year. The first financial year will begin on the day when public deed of constitution is issued and it will end on December 31st of the same year. Article 12.- Financial statements 15. The administrative board, within a maximum period of three months from the closure of the financial year, will formulate the financial statements with the content established legally or 16. As for the type, content, description, items, valuation rules, verification, revision, information for partners, approval, appliance of the results and deposit of the financial statements in the Business Register, will follow the provisions of the applicable legislation. V. CONTINUATION OF ACTIVITY AS A LIMITED COMPANY, DISSOLUTION AND LIQUIDATION Article 13.- Continuation of activity as a limited company The Company can continue its corporate activity as a general limited company with the requirements established by Article.144 Law 2/1995, of March 23rd Article 14.- Dissolution and liquidation The Company will be dissolved by the reasons legally established, and the entire process of dissolution and liquidation will be regulated by the administrators in force at the moment of dissolution, who will become liquidator members, unless the General Meeting, once the dissolution is agreed, appoints a maximum of five liquidator members. 12 / 15

13 VI. COMPLEMENTARY PROVISIONS Article 15 All matters that may arise among partners, or between them and the Company, regarding corporate relationships, and without prejudice to the procedural regulations which are of preferential legal application will be resolved through arbitrage formalised according to the legal prescriptions. 13 / 15

14 06. Documentation required to process telematically - Photocopy and original of the DNI of all the partners (National Identity Card). For foreigners: Communitarian NIE (Aliens Identification Number) or NIE and residence and self-employment permit. - Photocopy and original of the DNI of all the workers. For foreigners: Communitarian NIE or NIE and residence and self-employment permit - Photocopy and original of the Social Security card of all the partners, or any other document that proves the number of affiliation to the Social Security scheme. (Those who are members of an authorised mutual insurance company must present photocopy and original of the registration). - Photocopy and original of the Social Security card of all the workers, or any other document that proves the number of affiliation to the Social Security scheme. (If there are any benefits for contracting people with disabilities, the certificate must be submitted). - Personal information of the partners (and spouses: DNI and matrimonial property scheme). - Information on the registered office of the company and the activity (including: square meters of the premises, postal code and telephone number). - Percentages of the equity participation in the share capital and administrators. For registration in the Self-Employed Worker Scheme: contribution base selected and AT-EP mutual insurance company. - Bank account number (private), for direct debit payment to the Provincial Business Register. - Visa, MasterCard or American Express card to pay for the company name on line. - To contract staff: Contract or agreement of contract or authorization to process the registration in the Social Security scheme. - If the opening licence has already been requested, the reference number must be submitted. - An address if the choice is made to contract registration services, with a name and credit card number if this is the selected payment method. - Information on the representative SLNE - If the activity takes place in rented premises, and there is no obligation to apply personal income tax deduction, a document that proves that the landlord is registered in the epigraph 861 of the IAE. 14 / 15

15 - There is the option to pay Social Security contributions by direct debit from a private bank account number provided at the time of processing. NOTE: SHARE CAPITAL INJECTION. Before attending the appointment with the notary to constitute the SLNE, it will be necessary to open a bank account at any banking entity to deposit the share capital. The institution must provide a certificate which certifies the deposit in the presence of the notary. Written by the Barcelonanetactiva team from the following sources of information: - Law SLNE: Law 7/2003, of April 1st, on the SLNE (Spanish, Sociedad limitada nueva empresa) which reforms Law 2/1995, of March 23rd, on Limited Companies. - ID-CIRCE Assignment: Order ECO/1371/2003, of May 30th, by which the process to assign the ID-CIRCE code is regulated. - Open-ended Articles of Association: Order JUS/1445/2003, of June 4th, by which the guiding Articles of the SLNE are approved. - Regulation of the telematic process: Royal Decree 682/2003, of June 7th, by which the telematic processing mentioned in Law 7/1995, of May 23rd, of Limited Companies, is regulated. - Free change of company name: Law 24/2005, of November 18th, on reform for promotion of productivity. - Barcelona Activa SAU SPM, Last Update: 16/09/2009 Barcelona Activa SAU SPM will ensure that this information and the data contained in the reports are accurate and faithful. These reports are published to provide general information. Barcelona Activa SAU SPM will not accept under any circumstance any responsibility for losses, damages or theft, or for any other business decisions based on data or pieces of information that can be extracted from this report. 15 / 15