The incorporation of the GmbH

In addition to presenting the most important features of a GmbH in this issue, this article aims to provide a brief overview of the establishment of a GmbH with share capital. The following are generally considered to be share capital: transmissible Suitable assets:

• Claims that are transferred by way of assignment, but not claims against the assignor himself or a co-partner;,
• Ownership of physical property, real estate (here, a sufficient chronological order of the intended sale is required),
• The right of use over things,
• Collecting societies (companies, businesses, but also sub-companies, coin collections),
• Securities, participations,
• Patents

However, highly personal and non-transferable rights, services or profit opportunities, as well as items that will only become available in the future and for which no § 10 declaration can be submitted, are not suitable as earnest money. For any agreement regarding the provision of an earnest money, according to § 6a Abs 1 GmbHG, it is a prerequisite that

• the person of the partner,
• the subject matter to be taken over,
• and the monetary value

In detail already in Company contract it is precisely and completely stipulated, otherwise the agreement risks becoming invalid.

The establishment of a single entity is only permissible if at least half of the share capital by Depositors upset This rule has two exceptions.

• As a down payment, an enterprise that has been traveling since It has been in existence for at least 5 years, submitted,
• When establishing the company, the shareholding regulations regarding the founding report are observed.
  (Section 6a, paragraph 4 of the GmbHG).

It is important to note:
- In the company agreement, the determination of the person of the shareholder, the subject of the contribution and the amount of the initial contribution, from which the contribution is to be credited.
- One The founder's report must be submitted by the shareholder It must be prepared, in which the evaluation of the initial investment is documented. Likewise, this report must include with which legal transaction (transactions) the initial investment was acquired by the investor, what acquisition or production costs were associated with it, if the acquisition took place in the last 2 years before the establishment. In the case of the incorporation of a company, the operating profit of the last two business years must be included in the report. The founding report must also state whether the managing director or a member of the supervisory board included any special compensation or reward in the establishment.
- Examination of the Managing Director and the Supervisory Board (if provided for) and a founding auditor to be appointed by the court (Economic trustee or auditor and tax advisor) is mandatory regarding the establishment process and the creation of a audit report thereon. In particular, the correctness of the value of the assets invested and the value of the business shares granted for them must be examined (cf. § 26 AktG).

As explained, the establishment of a real estate asset is associated with certain formal requirements or additional costs in the case of real estate asset establishment, which has led to attempts to "circumvent" the real estate asset." -> disguised, hidden property. A concealed contribution of assets always occurs when a transaction involving an asset that is eligible for contribution is linked to a business between the partners and the company, so that in the end the company receives the asset but does not receive the contribution.

Example: Shareholder A provides a down payment of € 20,000, while (simultaneously) the shareholder of the company sells a car for € 20,000.
Result: Without compliance with the regulations regarding the establishment of the asset, these are invalid. The shareholder has not fulfilled his obligation to contribute his own funds; this may lead, in the event of bankruptcy, for the shareholder to have to make his own contribution again, and his claim against the company (the shareholder actually brought the car in) is limited to the bankruptcy ratio.

It is therefore worthwhile, when starting any company, to rely on the experience of your business trustee or lawyer.

Image: © Markus Bormann - Fotolia