Contribution in kind
The rule is the cash contribution, which is made in the form of a cash deposit or bank transfer in favor of a company when it is founded or when capital is increased. However, the law also permits the transfer of material assets or rights, in particular in the context of a material incorporation or acquisition . Contribution in kind is therefore any contribution that is not made in cash or as a non-cash payment. Contributions in kind are, as they are considered the exception, in the social contract expressly provided.
When contributions in kind are brought in instead of cash, this must be expressly regulated in the articles of association, stating the (real) value, the person bringing in it and the precise description of the thing (s).
In the case of contributions in kind, there are five main groups depending on the object to be transferred as a capital contribution:
- Material contributions in kind : the partner transfers ownership of certain material assets to the company without consideration (land, buildings, securities, machines, inventories or claims). If, during a company takeover , shares are exchanged through the issue of new shares (i.e. payment is not made from the company's own holdings), the shares exchanged are considered a contribution in kind.
- Intangible contributions in kind : The company is provided with assets that can be activated by the shareholder ( patents , licenses , copyrights ) without consideration.
- Services such as free management are only permitted as contributions in kind in partnerships . In the case of the GmbH, the Federal Court of Justice ruled out the ability to make contributions in kind for services in accordance with (4) GmbHG, which it later extended to the AG.
- In the case of transfer of use , the shareholder does not transfer his assets to the company on account of ownership, but allows it to use the objects free of charge. Transfer of use to corporations is only possible if the transferring shareholder is the sole shareholder or the transfer of use corresponds to his participation quota.
- A hidden contribution in kind is the circumvention of the provisions of Section 19 Paragraph 4 GmbH and Paragraph 3 AktG, whereby a cash contribution is officially made, but with the agreement to later exchange the cash contribution for an asset belonging to the shareholder. This exchange does not release the shareholder from his contribution obligation. In contrast to the AG (Section 27 (3) sentence 1 AktG), the contracts for a hidden contribution in kind are effective in the GmbH (Section 19 (4) sentence 2 GmbHG).
In contrast to cash contributions, the valuation of contributions in kind is not very easy. In corporate law is therefore determined that in-kind contributions an examination to take place by at least one auditor ( para. 3 sentence 1 AktG), property-ups can be made only in a few exceptional cases without formation auditors ( para. 1 AktG). The auditor must confirm that the value of the contribution in kind covers the issue price of the shares and any premium . In the case of a GmbH, only the nominal amount needs to be covered ( (1) GmbHG). Any object that has an identifiable asset is eligible for contributions in kind. In the case of corporations, however, obligations to provide services and own shares are excluded. It is clear that if the contribution in kind is objectively valued too high, the shareholder receives a higher capital contribution than he is entitled to. In the event of such an overvaluation, the GmbH shareholder has to pay the difference in cash (Section 9 (1) GmbHG); in the case of the AG, even the premium is covered by the obligation to pay cash. In the case of services, the contribution in kind is made in the amount of a fictitious general manager's salary, in the case of transfer of use in the amount of a fictitious local rent payment.
Under Swiss company law, a contribution in kind (Art. 628, 634 OR) is permitted, provided that the following conditions are met in accordance with the practice of the Federal Commercial Register:
- The asset must be capitalizable under commercial law;
- it is transferable;
- it is available after the company has been founded or increased its capital
- In the event of a crisis, the item can be used.
The above-mentioned regulations, which have emerged in practice, will be incorporated into the law in accordance with the draft on stock corporation and accounting law: Contributions in kind are considered to be cover if:
- they can be activated;
- they may be transferred to the company's assets;
- the company can freely dispose of it as the owner immediately after registering with the commercial register office or, in the case of real estate, has an unconditional right to be entered in the land register;
- they can be used by transferring them to third parties;
- a formation report with audit confirmation is available.
The aforementioned criterion of the ability to be activated is already determined under current law according to the requirements of accounting law, i.e. H. in particular according to Art. 959 Para. 2 OR. This provision reads as follows: "Assets must be recognized as assets if they can be disposed of due to past events, an inflow of funds is likely and their value can be reliably estimated. Other assets may not be recognized." The assessment of the assets is based on Articles 960 ff. OR. The interplay of accounting and stock corporation law is intended to ensure that the stock corporation has actually been endowed with the share capital shown in the commercial register and in the articles of association.
- Peter Böckli , Swiss company law, 3rd edition Zurich / Basel / Geneva 2004
- Peter Forstmoser / Gaudenz Zindel, Ability to make contributions in kind of transfer values in professional sports, Reprax 3 (2001) Issue 2, 1 ff.
- Peter Forstmoser / Arthur Meier-Hayoz / Peter Nobel, Swiss company law, Bern 1997
- Arthur Meier-Hayoz / Peter Forstmoser, Swiss Company Law, 10th edition, Bern 2007
- Lukas Müller, The ability to make contributions in kind of intangible assets and goodwill in the light of international accounting, GesKR 3 (2008) 50 ff.
- Materials on the new stock corporation and accounting law
- BGH DB 2009, 780: "Qivive judgment"
- BGH, judgment of February 1, 2010, Az .: II ZR 173/08
- BFH, judgment of March 28, 2000, Az .: VIII R 68/96; DB 2000, p. 1738
- EU Capital Directive, Second Council Directive 77/91 / EEC of December 13, 1976
- MünchKomm AktG / Peifer, Section 183 Rn. 8th
- BGH, judgment of December 6, 2011, Az .: II ZR 149/10
- Art. 634 para. 1 E-OR ; PDF; 642 kB
- On the prerequisites for a contribution in kind using the example of payment of share capital using cryptocurrencies such as B. Bitcoin cf. Lukas Müller / Thomas Stoltz / Tobias A. Kallenbach, Payment of share capital using crypto currency - Are bitcoins and other crypto currencies suitable for raising capital ?, Current Legal Practice, 26 (2017) 1318-1332 . This article contains a clear presentation of all requirements for contributions in kind; Lukas Müller / Malik Ong, updates on the law of cryptocurrencies, current legal practice, 29 (2020) 198 ff.