Little pearls in the Entrepreneurs Law and Simplified Corpoprations
Little pearls in the Entrepreneurs Law and Simplified Corporations.
Mariana Berger
While we are still waiting for the regulation of the “Entrepreneurs Law” (Law No. 27,349) and in particular the regulations to put in force the new type of corporation created by the Act (Simplified Corporations or S. A. S.), we dare to highlight some aspects of the law that have marked the first steps of a track. We will classify as “white or black pearls”, depending on whether an advance or deficiency in law, respectively.
Shareholders. The SAS may be constituted by one shareholder. The SAS may be constituted by one or more shareholders. The only limitation established by law, is that they cannot be included in paragraphs 1, 3, 4 and 5 of section 299 of Law 19,550. That is to say, it cannot be a company that makes a public offering of its shares (section 1), is a mixed economy company (section 3), performs capitalization or savings operations or in any way requires money or securities to the public with promises of benefits or future benefits (section 4) or operate concessions or public services (section 5). They may be companies with a capital stock of $ 10 million (section 2) or more.
Rating: PEARL WHITE (+)
Comments: This simple and basic provision implies, in a certain way, to discard the use of the Sole Shareholders Companies and be part of the corporate world, without the need to be subject to permanent state control, with the consequences that this implies. They are excluded to use this type of company insurance companies, financial institutions or make public offering of its shares, among others, but may choose this figure an entrepreneur, a freelancer or a company belonging to a group Multinational entrepreneur, avoiding the need to own two shareholders.
Instrumentation: The S. A. S may be constituted by public or private instrument with certified signatures by notaries or banking firms. Likewise, the incorporation by digital means and digital signature is foreseen.
Rating: PEARL WHITE (+)
Comments: At this point, the law has not only incorporated societies into the digital age (for the moment unknown in this area) allowing the incorporation by digital means and digital signature, but also the possibility of subscribing the constitutive instrument with signatures certified before notary (like a PLC) or bank.
All these means of instrumentation are a success and avoid the need to resort to the expensive fees of a public notary.
Multiple Corporate purpose Taking up a position previously accepted in corporate matters, it may become an S.A.S with multiple or plural object, without the need for the activities to be connected.
Rating: WHITE PEARL (+)
Comments: This criterion was taken over by General Inspectorate of Justice (IGJ) through the issuance of Resolution 8/16 after years of demanding that the object is unique, determined and proportional to the capital.
Social capital. Adopting an intermediate position between the corporation’s (initial capital of $ 100,000) and PLC (no minimum capital), the SAS must have a minimum initial share capital of 2 vital and mobile minimum wages.
Rating: BLACK PEARL (-)
Comments: Much s authors have criticized this measure as it seems unnecessary to hold a “mobile” measure. However, it is important to note that, until the enactment of the law that concerns us today, although the SRLs did not have a minimum social capital required by law, the IGJ regulations required proportional capital to the object and a minimum suggested minimum capital of $ 30,000. These standards were repealed and would now only have minimum social capital, the SA, SAU and SAS
Registration. Incorporation using preset bylaws. The registration of the SAS must be made within 24 hours, counting from the day after the presentation, provided that the preset bylaws approved by the registry are used.
Assessment: PEARL WHITE (+)
Comments: According to sources close to the IGJ sources type statute he is considering issuing such registration would be a constituent instrument quite similar to the social contract of a limited liability company for this reason, who pretended to obtain the registration of a SAS within 24 hours, but incorporating many of the innovative provisions of the law, you must choose to be the type SAS under the statute and then amend the clauses as a result of contractual freedom, subject to the usual procedures and times of the organism (30 days approx.).
Valuation contributions in kind. Non – cash contributions will be valued as the value that shareholders unanimously determined. For this, they must only provide the supporting evidence of the valuation.
Rating: PEARL WHITE (+)
Comments: On this point, it will be fundamental to wait for the regulations to be issued by the registry, keeping in mind that to date, the need to present accounting certifications of a complex nature and with the participation of experts has generated that the contributions of assets, are instrumented In a different way, only to avoid expensive costly valuations.
Share premium. The law incorporates on this point, the possibility of issuing different emission premiums in the same capital increase, having to issue shares of different kinds, even when they are granted equal economic and political rights.
Rating: PEARL WHITE (+)
Comments: While this, initially seems a great asset to issue shares maintaining proportionality in shareholdings, even if the contributions are not are of such character, probably in minority protection regulations Additional property was more strict rules regarding the determination of the issue premium for non-unanimous assemblies.
In this sense, General Resolution IGJ 7/15 establishes the need to establish an issue premium when the equity value of the shares exceeds the nominal value, using a balance sheet or a special balance sheet.
Notification of capital increases. The constituent instrument may establish the capital increase, without the need to publish in the Official Gazette or register with the Public Registry, provided that such increase is less than 50% of the registered capital.
Said resolutions should only be sent to the Public Registry by digital means in order to verify compliance with the registry process.
Rating: PEARL WHITE (+)
Comments: While Law 19,550 establishes the possibility of implementing a capital increase in the amount five times without this reform statute, this practice has no major differences. Both increases (with and without statutory reform) must be published, registered and counted with an accounting certification that proves the income of the contributions.
Irrevocable contributions. Irrevocable contributions may maintain this character for a period of 24 months, counted from their acceptance by the Board.
The Board of Directors shall consider the destination of said funds, within 15 days of the entry of part or all of the sums of money.
Rating: PEARL WHITE (+)
Comments: This standard separates the SAS from other corporate types, as currently irrevocable contributions are subject to the rules set by the General Resolution IGJ 7/15, which provides , inter alia, maintaining contributions for a period Maximum of 1 year, the non-accrual of interests and the procedure for their return (similar to a reduction of capital).
Board of director’s term. The administration of the SAS will be in charge of a Board composed of one or more titular directors and an alternate director, when it is disregarded. The mandate may be determined or indeterminate.
Rating: PEARL WHITE (+)
Comments: In this respect, the mandate indefinitely, which at the moment can only enjoy in Management of PLCs? In this way, entries, presentations and expenses are avoided for those who do not suffer modifications in the composition of the Board of Directors.
Foreign directors. When the Board is collegiate, at least one of its directors must have a real domicile in Argentina. Foreign directors must hold CDI and appoint representative in Argentina.
Rating: PEARL WHITE (+)
Comments: This incorporation loosens the current “absolute majority” of director’s domicile in Argentina and incorporates the need to appoint a representative to provide flexibility and ensure the functioning of the Board.
Call to the board of directors. The summons to the meetings of directory can be done by electronic means, having to be sure its reception.
Rating: PEARL WHITE (+)
Comments: Although Law 19,550 does not specifically establish the manner in which the convocation of board meetings is to be held, the comptroller agencies have not accepted the call by electronic means. For this reason, it is only admitted that they are done in writing and through the use of reliable means of communication.
Board meetings. Board meetings can be held inside or outside the head office, using electronic means to enable simultaneous communication.
Rating: PEARL WHITE (+)
Comments: The holding of meetings outside the headquarters and through electronic means has been approved by General Resolution IGJ 7/15. However, this rule establishes, as a condition, the need for a quorum in the place where the meeting is held physically. We hope in this case, regulation will be required to check the conformation of attendance or quorum for board meetings remotely.
Shareholders meetings. The constituent instrument may establish that assemblies are held at or outside the headquarters, using means that allow participants to communicate simultaneously between them.
Rating: BLACK PEARL (-)
Comments: At this point, and although it cannot be ignored the attempt to advance in this area, it appears that legislators have neglected many practical issues involving the celebration of a shareholders meeting. For what is missing forecast could be used to the detriment of the rights of shareholders or should have been provided only for the unanimous shareholders meetings.
Upon opening a shareholder meeting, each shareholder or his representative must prove at that time, among other things: i) his identity; Ii) the enabling documentation to act on behalf of the shareholder (proxy).
The standard does not refer to video-conferencing systems, but only “simultaneous communication” so that these ends could not be verified at the time of the opening of the assembly.
Again, we hope that the regulation complements this standard, without neglecting the opportunity to celebrate unanimously assemblies by implementing communication systems or video conferencing.
Call to shareholders meetings. Any communication or call a meeting should contact the shareholder notified by the administration address.
Rating: BLACK PEARL (-)
Comments: In the same way as in the preceding point, we consider a positive intent to make it more flexible for calling a meeting. What we do not consider correct, is the passage from one end to the other. The need to publish the convocation to assembly in the Official Gazette or other newspaper (when applicable), without a doubt, is expensive and its rationale, utopian. However, a simple notification, without requiring or ensure receipt, or to be performed by s authentic, appear to be exiguous for cases not unanimous assemblies.
Simplification of procedures before AFIP and financial institutions. In the final articles, the new law provides for the need to simplify the procedures for opening cue SWTR financial institutions, CUIT for SAS and CDI of foreign shareholders.
Rating: BLACK PEARL (-)
Comments: Under this rule, the BCRA has issued Communication A 6223, which establishes the need to present only the inscribed instrument and the record of obtaining its CUIT. This documentation may be submitted no longer at the beginning of the application for account opening, but within 60 calendar days of the filing thereof.
Regarding the negotiations with the AFIP, the following is distinguished:
(I) Ability to obtain the Tax ID within 24 hours of presentation of the proceedings before that body and without presenting evidence of domicile, but only within 12 months.
(Ii) The non – resident shareholders will get your CDI SAS within 24 hours of the procedure presented.
In the latter case, it would have been convenient not only limit documentation by that agency to obtain the CDI, but also how to do it , since the CDI of non – residents are one of the requirements for the establishment of the SAS., According to art. 36 of the Act.
The same could be said about the need to regulate the manner and form of obtaining the CDI by foreign directors because it has not been planned, but if it is required by art. 51.
Both irregularities can generate that the SAS and the registrations before AFIP entail a term and managements larger than expected.
Last conclusions: To continue with the same line in regard to the qualification of the provisions of the law of entrepreneurs, we could highlight.
PEARL WHITE: They are white pearls of law, all provisions related to the reception and integration of digital media in regard to the constitution, registration and form of holding meetings or calls. It is also a success, to receive all the figures and mechanisms already provided for other corporate types, such as the need for a single shareholder, indefinite mandate, among others.
BLACK PEARL: On the contrary, all those provisions that are intended to streamline procedures and deadlines in the Public Registry, or procedure and documentation required by AFIP and financial institutions could have been remedied n roots and not only for SAS but also for any other type of company provided for in the law 19,550. So in this respect, these incorporations only involve remedying practical deficiencies of the organizations and those that can only enjoy SAS
Footnote: Note that on July 11th, 2017, the Office of Corporations issued General Resolution 5/2017. Due to the entry into force of this rule, Limited Liability Companies (exclusively) may be registered within 24 hours, obtain Tax ID and the corresponding corporate books at the time of their registration. A good step towards the path of registry simplification.