Concealed contribution in kind
A hidden contribution in kind is the circumvention of the regulations on contributions in kind of GmbH and stock corporation law. The parties proceed in such a way that they only formally agree on a cash deposit obligation, this is also declared to the commercial register and the cash debt is paid. In fact, however, there is an agreement to exchange the paid-in money for an asset of a shareholder immediately after the registration of the cash formation or capital increase . This is mostly done by way of a purchase contract . At the end of the transaction, the company has only tangible assets. For these, however, the disclosure and valuation regulations that the law lays down for founding with contributions in kind were bypassed. The shareholder, however, received the paid-in cash back in the form of the purchase price.
Legal consequences before the MoMiG
Before the legal regulations in the German GmbH Act (GmbHG), two legal consequences were linked to the offense of the hidden contribution in kind. On the one hand, the payment of the cash contribution should not have been liberating, which is why it was still pending. On the other hand, the exchange deal was void and had to be reversed. In return, the partner could claim back the first (ineffective) performance of the cash contribution and claim back the item (or its value) with the property claim (or a claim for enrichment ).
Example: A and B found a stock corporation with a cash share capital of EUR 100,000 and each pay in EUR 50,000 in full. After the shareholders have been entered in the commercial register, A sells his small truck to the company as a private person for EUR 50,000. If this procedure was already agreed upon when the company was founded, then there is a hidden contribution in kind. As a legal consequence, A has to make his cash contribution of 50,000 EUR again, and he also owes the company the purchase price of 50,000 EUR because the purchase contract was void. At the same time, he may reclaim his first cash contribution of EUR 50,000 and the item or its value.
If the company went bankrupt , the shareholder could possibly suffer double the loss of his paid-in capital. Because on the one hand he had to repay the purchase price from the void exchange transaction, on the other hand he had to pay the deposit again. On the other hand, he was able to set off the reimbursement of the first (ineffective) deposit payment under the law on enrichment, but if the matter had already been written off, he only received the insolvency rate on his claim for enrichment .
Example: A can counter the purchase price claim of 50,000 euros with the enrichment claim from the first, ineffective performance of the cash contribution, set off in the amount of 50,000 euros. Because of the offsetting prohibition, he must in any case meet the renewed demand for the cash contribution in the amount of 50,000 euros. However, on his claim for enrichment from the consumption of the small truck that had already been written off, he only got the average bankruptcy rate of 7%. In bankruptcy, A loses 193% of his capital, i.e. 96,500 euros.
Legal consequences according to the MoMiG
With the new regulations of Section 19 (4) GmbHG or, in the case of a stock corporation according to Section 27 (3 ) AktG , which were introduced in the course of the law to modernize GmbH law and to combat abuse , the German legislature changed the legal consequences of a hidden contribution in kind. The exchange deal is no longer void, but remains valid. Although the initial payment could not meet the contribution obligation, the value of the hidden contribution in kind is offset against the outstanding contribution obligation. If the value of the object of the hidden contribution actually corresponds to the amount of the cash contribution, the shareholder does not have any negative consequences. If the value of the deposit lagged behind, a differential liability is applied as a result .
swell
For Germany
- Pentz in Munich Commentary on the German Stock Corporation Act, Section 27, Rz 98
- Heidinger in Spindler / Stilz, AktG, § 27, Rz 147
- Lutter / Bayer in Lutter / Hommelhoff, GmbHG, § 5, margin no.48
- Winter / Westermann in Scholz, GmbHG, § 5, margin no.80a
- Hermanns in Michalski, GmbHG, § 56, 9, 23ff
- Hueck / Fastrich in Baumbach / Hueck, GmbHG, § 19, margin no.30c
- hidden contribution in kind according to MoMiG
- Press release MoMiG
- Focus on MoMiG
For Austria
- Koppensteiner , About hidden contributions in kind, inadmissible contributions from company assets and free disposal, GeS 2007, 280
- Ettel in Doralt / Nowotny / Kalss, AktG, § 20, Rz 4
- Heidinger in Jabornegg / Strasser, AktG, § 20, margin no.26
- Koppensteiner / Rüffler , GmbHG comment, § 6, 63.
Individual evidence
- ↑ Overview University of Passau ( 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.
- ↑ MoMiG ( Memento of the original from December 4, 2008 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
