Outstanding Capital
Outstanding capital ( outstanding contributions ; English uncalled share capital , capital outstanding ) are the obligations not yet fulfilled by the shareholders to pay in their capital contribution .
General
The law does not require immediate and full payment of capital contributions. From social contract or statute , therefore, can result in what amount and when the shareholders of their company equity have to be made available. If the planned capital contributions have not yet been fully paid, the shareholders are liable to the company's creditors with their private assets . In the event that the full capital is not paid in immediately, there is a balance sheet difference between the subscribed capital and the capital actually paid in. Commercial law differentiates between uncalled outstanding deposits ( uncalled share capital ) and called but not yet paid deposits ( outstanding capital ). Only the requested deposits are to be capitalized as receivables on the assets side of the balance sheet.
This strict distinction under commercial law is only required for corporations , as in these, as a rule, only the company's assets are liable for the company's debts and therefore an exact breakdown of the payment status is required. Sole traders and partnerships, however, do not have “subscribed capital”. Instead of the balance sheet item "subscribed capital", the capital shares of the personally liable partners are to be shown ( Section 264c (2) sentence 2 HGB ).
Phases of capital injection
Ideally, the subscribed capital of Section 266 (3) AI HGB is paid in immediately and in full by the shareholders. If this is deviated from, the legislature differentiates between the unclaimed outstanding contributions to the subscribed capital and the called but not yet paid amount. Uncalled outstanding contributions require that the company has not yet called the affected capital contributions from its shareholders. In the next step, it will call up these capital contributions by asking its shareholders to make contributions that have not yet been made.
According to § 272 Paragraph 1 Clause 3 HGB, the net method provides that
- the unclaimed outstanding contributions to the subscribed capital are to be openly deducted from the balance sheet item “subscribed capital”; the remaining amount is to be shown as the item “called-in capital” in the main column on the liabilities side;
- the amount requested but not yet paid is to be shown separately under the claims and must be designated accordingly.
The provision of Section 272 (1) of the German Commercial Code (HGB) only relates to the outstanding contributions to subscribed capital and not to premium amounts . In the case of the AG and KGaA , section 36a of the AktG stipulates that, in the case of cash contributions, the amount claimed must reach at least 25% of the lowest issue amount. In Section 182 (4) AktG it is provided that a capital increase should not take place as long as there are outstanding contributions; only insurance companies may deviate from this.
Balance sheet presentation
The balance sheet item "Uncalled capital" includes both the work already done by the shareholders and the company accrued deposits and the called-but not yet paid deposits. Correspondingly, the amount requested but not yet paid in must be shown separately under the claims and designated accordingly.
As a correction item on the liabilities side , outstanding deposits that have not yet been called in are not accessible to any balance sheet valuation , so that a devaluation of outstanding deposits that have not yet been called in is ruled out due to poor creditworthiness of the shareholder. On the other hand, a valuation of outstanding deposits that have been called in but not yet paid in is permissible due to the poor creditworthiness of the shareholder, since they belong to the current assets as capitalized receivables and are therefore subject to the strict lowest value principle . Allocation of demanded outstanding deposits to fixed assets is not permitted under Section 247 (2) of the German Commercial Code. A difference between the required capital and the lower claims on shareholders can then be attributed to the shareholders' creditworthiness problems:
liability
If capital shares are not fully paid up, the question arises as to whether and how the relevant partner is liable for the outstanding contribution.
In the case of the GmbH , a chain of recourse is provided for in the event of outstanding contributions, according to which the shareholder is initially requested to pay his outstanding contribution in accordance with Section 21 (1) GmbHG. If this request remains unsuccessful, the shareholder will be excluded with his share of the business ( cessation ). Then, according to Section 22 (1) GmbHG, any legal predecessors of the defaulting shareholder are liable in the context of a chain of recourse. If any legal predecessors of the defaulting shareholder could not be held liable, a public auction is planned ( Section 23 GmbHG). If this remains unsuccessful, the remaining co-partners are ultimately liable for the outstanding contributions in accordance with Section 24 GmbHG in proportion to their participation.
In the case of stock corporations, the law expressly provides that shares are not paid in full; however, it then requires that shares that have not been fully paid up may only be issued as registered shares ( Section 10 (2) AktG). In that case, the shareholders must pay in their contributions upon request ( Section 63 (1) AktG). If they fail to comply with this payment obligation, the foremen entered in the share register are liable in accordance with Section 65 (2) AktG for the capital contributions requested within 2 years of the transfer.
meaning
Outstanding capital contributions are by no means uncommon for companies. This is typical internationally, especially with insurance companies , when the articles of association already provide for higher capital amounts, which are initially not operationally necessary and are therefore not demanded immediately. If the insurance risk increases, the outstanding capital amounts are called in in full or in part. This also applies to other types of company where initially not the entire capital contribution is required, but is required when there is an increased need for investment. When raising capital, it should be noted that only the paid-in capital shares are subject to a dividend payment obligation.
International
In Austria , as in Germany, the outstanding contributions that have not been called in are to be deducted from the share capital, and those that have been called in are to be capitalized as “other receivables” (Section 229 (UGB)). The respective shareholders and their predecessors are liable for outstanding contributions (§§ 57 ff. ÖAktG). In Switzerland , partial payment is used when there is no full payment of capital shares. If a partner in a GmbH in Switzerland has not fully paid up his capital contribution , all partners are jointly and subsidiary liable. Bearer shares are prohibited from partial payment (Art. 683 Paragraph 1 OR in conjunction with Art. 685 Paragraph 1 OR). In a stock corporation, only the owners of the shares are liable for outstanding contributions (Art. 681 et seq. OR). In England, the Companies Act does not provide for any mandatory payment, so shareholders can only be called upon to pay upon liquidation . As in Germany, in France and Spain, a GmbH is required to pay in full before it is registered .
Individual evidence
- ↑ Section 272 (1) of the German Commercial Code (HGB) since the Accounting Law Modernization Act (BilMoG) came into force
- ↑ Bundestag printed paper 16/10067 of July 30, 2008, p. 65
- ^ Rainer Hüttemann, Großkommentar HGB , 2002, § 272 Rn. 17th
- ↑ Gerhard Scherrer, accounting according to the new HGB , 2011, p. 208
- ↑ Section 502 Companies Act (1985) and Section 74 of the Insolvency Act (1986)
