Contribution
Incorporation is a legal concept , either in company law , the transfer of business assets to a corporation or a partnership or property law the voluntary Into creation of chattels in by statutory liens protected sphere of the creditor understands.
General
Bringing in is generally about someone bringing objects into a society or into the sphere of influence of a believer. This is associated with legal consequences , because as a result the person creating either loses his property or subjects it to the control of a creditor. In all cases, the transfer takes place with the will of the transferring legal entity .
Legal issues
The contribution relates to the company law , the law of property and other areas of law . Since the entry in property law is a real act , the provisions on lack of will do not apply. In corporate law, the contribution is an exchange agreement .
Corporate law
General
The Transformation Act (UmwG) regulates, among other things, the merger ( § 2 UmwG), under which the contribution is to be subsumed. However, the contribution establishes a participation relationship, while it is ended by the real merger. This contribution triggers tax law issues, which are regulated by the Transformation Tax Act (UmwStG) based on the UmwG . So that the tax neutrality of hidden reserves remains guaranteed for the transferring legal entity, the consideration for the contribution must exist in the form of a company participation .
species
Under company law, the contribution is the transfer of assets or economic goods in the form of an exchange agreement for participation in a company. Contribution is therefore either a foundation in kind or a capital increase by way of a contribution in kind . A distinction must be made between the contribution to a corporation and a partnership:
- The transfer of a business , a part of a business or a co-entrepreneur's share in a corporation in return for the granting of company rights is an exchange agreement that always leads to the realization of the hidden reserves of the business assets brought in . The acquiring corporation may apply the business assets brought in at its book value or at a higher value ( Section 20 (2) UmwStG). It may set the assets at acquisition cost and can thus ensure that the existing hidden reserves will also be retained in the future if a later sale of the assets brought in is still subject to German taxation (Section 20 (2) UmwStG).
- If a business, sub-business or a joint venture's share is brought into a partnership and the contributing partner becomes a co- entrepreneur of the company, the partnership may apply the business assets brought in in its balance sheet for its shareholders at its book value or a higher value. The value at which the business assets brought in are shown in the balance sheet of the partnership for its shareholders is the selling price for the contributing party ( Section 24 Paragraphs 2 and 3 UmwStG).
The most important legal consequence of the contribution is the option provided for in Section 24 (2) UmwStG. The acquired assets can be reported at book value or a higher value. The partial values of the individual assets must not be exceeded.
The exchange of shares in corporations basically leads to the realization of the hidden reserves contained in the book value of the shares given. An exception only applies to cases in which, from an economic point of view , the identity of the given and the received shares can be affirmed due to the equality of value, type and function of the exchanged shares.
Property law
General
In property law, the contribution concerns statutory liens to which certain creditors are entitled by law. The liens arise when the debtors bring the movable property belonging to them into the domain of the obligee. Contribution is understood to be the deliberate bringing in of movable property by the debtor into the obligee's sphere of influence mediated by the debt relationship . The contribution must therefore be carried out with the will of the contributor and in a targeted manner and must not only be temporary . In the case of items that are only brought in temporarily with the intention of being removed again as soon as possible, a distinction must be made between whether or not the temporary location corresponds to the intended use of the rental item. The contribution replaces the transfer of ownership according to Section 1205 (1) of the German Civil Code ( BGB ) , which is required for contractual lien .
species
A contribution concerns the following legal liens:
- The freight forwarder has a right of lien on the freight of the sender or unloader handed over to him for transport for all claims due from the freight contract ( Section 440 (1) HGB ).
- The restaurateur's lien ( § 562 , § 701 , § 704 BGB) is about the innkeeper or hotelier using the movable property brought in by the guests as security for their claims against guests arising from the accommodation contract .
- The commission agent has a right of lien on the commission goods because of the costs made on the commission goods and the commission ( § 397 HGB).
- The bearing holder has for all demands from the storage contract , a lien on the it to the storage passed stored material of the depositor ( § 475b para. 1 HGB).
- The freight forwarder has a right of lien for all claims from the freight forwarding contract on the freight forwarded to him for dispatch by the sender or unloader ( Section 464 HGB).
- The entrepreneur's lien is available to the entrepreneur as security for his due claims against the customer from the contract for work and services and extends to the items brought into the company by the customer ( § 647 BGB).
- The landlord's lien extends to all items brought into the rented space by the tenant that secure the landlord's outstanding rental claims ( Section 562 ). The items produced in the rented rooms are also considered to be brought in. The non- attachable objects are not subject to the lien (§ 562 Abs. 1 Satz 2 BGB), the scope of which is defined in § 811 Abs. 1 ZPO .
- The lessor's lien in accordance with Section 581 (2) BGB is equivalent to the lessor's lien.
These liens are strictly accessory , they only refer to the claims from the underlying contract. The obligee may compensate for the threatened financial disadvantage in the event of non-payment by seizing the property.
Recovery
The realization of the brought in items subject to the legal lien is carried out in accordance with the rules of the realization of the pledge. According to this, the obligee must first threaten realization ( § 1234 Paragraph 1 BGB) and observe the waiting period of one month (§ 1234 Paragraph 2 BGB) before the items brought in can be sold by way of public auction ( § 1235 BGB).
Other areas of law
Since the accommodation contract is a mixed contract, the landlord's lien relates specifically to the safekeeping by bringing the guest's items into the designated places (suitcase in the room, clothes in the closet, valuables in the safe, car in the garage). This means that the transfer is both a guest's right, which can trigger liability for the innkeeper in the event of loss, and the basis for the right of lien.
In labor law , the employer's duty of protection is affirmed for the things brought into the workplace by the employee , which is derived from his duty of care ( Section 618 (1) BGB). The duty of care extends to all things that are brought into the company in an internal connection with the work performance of the employee. This includes work clothes , adequate cash or vehicles , but not radios or jewelry.
In water balance law , the introduction of foreign substances into a body of water is understood to mean the introduction or entry of foreign substances . According to the Water Resources Act (WHG), solid substances may not be introduced into surface waters ( § 32 Paragraph 1 WHG) and coastal waters ( § 45 Paragraph 1 WHG) in order to dispose of them. A permit for the introduction and discharge of substances into the groundwater may only be granted in accordance with Section 48 (1) of the WHG if there is no reason to fear a negative change in the quality of the water. The introduction of sediments into a body of water is always subject to the reservation of permission from Section 8 of the WHG as a water body use within the meaning of Section 9 Paragraph 1 No. 4 WHG.
International
In Austria , the term is specifically determined by tax law. It is defined in Section 12 (1) of the Reorganization Tax Act (UmgrStG) and regulated in the entire Article III Contribution . There you will find the written contribution contract ( contribution in kind ) between Ges.mbHs dealt with ( reorganization ). In company law is no match found.
The term in the sense of this law includes "all capital shares, regardless of whether they are brought in in full or in part or whether they belong to the business or private assets of the contributor." Here , shares are understood to mean shares , GmbH shares , cooperative shares , participation certificates and the right to use the substance (within the meaning of Section 8 (3) 1 of the KStG ). The term is particularly relevant in relation to the creation or expansion of a group of companies and the associated group taxation .
See also
Individual evidence
- ↑ Ulf Blank / Hubert Börstinghaus, The entire BGB tenancy law: Commentary , 2008, § 562 Rn. 9
- ↑ Susanne Hierl / Steffen Huber, Legal Forms and Choice of Legal Form: Law, Taxes, Advice , 2008, p. 237
- ↑ BFH, judgment of December 16, 1958, BStBl. III 1959, 30 = BFHE 68, 78
- ↑ RGZ 132, 116, 118 in the case of rental; BGHZ 170, 196
- ↑ Thomas Hannemann / Karl Friedrich Wiek / Thomas Emmert, Handbuch des Mietrechts , 2013, p. 672
- ↑ RGZ 132, 116
- ↑ Wolfgang Fikentscher / Andreas Heinemann, Schuldrecht , 2006, p. 647
- ↑ Hilmar Götz, Employment Contract Law , Volume I, 1996, p. 122
- ↑ a b Kornelia Waitz-Ramsauer, ÖGWT-Club: The introduction - all the essentials at a glance in short form , folder, May 12th and 13th, 2009 (accessed August 20, 2014).
- ↑ a b Contribution of capital shares according to Art. III Restructuring Tax Act ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , wtg.at → Fachinformation (accessed August 20, 2014).
