The occasional reserve may be created by the company whenever it deems it necessary or appropriate and has a special purpose to be approved by the general meeting of shareholders. ARTICLE 45 PARDON. The simplified public limited company is subject, in matters not provided for by this law, to the provisions of the articles of association, to the legislation on public limited companies and, insofar as they do not contradict each other, to the general provisions of the Commercial Code applicable to companies. In the absence of the Board of Directors, the functions normally falling within its competence shall be exercised by the legal representative. As can be seen, and when interpreting supersociedades, this reference must be considered in order of prevalence. Therefore, firstly, it is necessary to deal with the express provisions enshrined in the same SAS Act (Law 1258 of 2008); On the other hand, they must be subject to the legal provisions and, subsequently, to the legal provisions applicable to “public limited companies” and to the general provisions of the Commercial Code on companies. The legal reserve is mandatory for certain types of companies and serves to protect the company`s assets and compensate for any losses. In view of the above, if the company responsible for inspecting the S.A.S. issues this opinion, this means that the shareholders (individually or majority) of this S.A.S. are free to include in their articles of association or not the provision according to which the company must issue legal or statutory reservations and the amounts for which they should make them. Therefore, in our opinion, the existence of the legal reserve in the simplified public limited company is not mandatory, unless there is a statutory provision, since the same law applies to the parties. Despite the above, the most recommended thing for any company, including S.A.S., is to get used to not distributing all the profits of its exercise and instead use reserves (even if it is a small reserve like the legal reserve), because remember that if these reserves do not exist and over time, equity accumulates losses, so there would be no way to offset or amortize those losses, and sometimes the accumulation of losses could lead to a cause for the mandatory dissolution of the corporation (see our February 2009 editorial: “Steps to follow with a year`s results in commercial companies”).
According to the order of transfers contained in Article 45 of Law 1258 of 2008, the constitution of the legal reserve in an SAS would not be mandatory if it is not specified in the statutes of the institution. In general, the legal representative of an SAS performs the functions that are regularly performed by the legal representative of a company. The legal reserve is constituted only if the partners determine it in the articles of association of the company and the amount and its determination are determined by the same articles of association. The company may cease to absorb resources to build up statutory reserves if there is a legal reform that removes them or if the amount specified in the articles of association is reached. Law 1258 of 2008 does not create an obligation to establish a legal reserve unless this is stipulated in the statutes, which does not prevent the Assembly, if the relevant conditions are met, from reforming the legal provision in order to abolish it, as its character is optional. If the company had foreseen that it would apply the use of a legal reserve, nothing would prevent it from amending its articles of association, complying with the relevant requirements of this procedure and “abolishing” this legal provision, so that the SAS and the general meeting can no longer necessarily dispose of the previously created reserve according to the needs of the company. which this institution shall take into account. This provision is constituted by the allocation of 10% of the annual net income until the amount reaches at least 50% of the share capital. Once this amount has been reached, it is not mandatory to continue allocating funds to the legal reserve.
I refer to your communication submitted to this entity under number 2011-01-387466, by which you mention the official letter 220-113868 of October 2, 2011, issued by the Autorité de Surveillance des Sociétés, which refers to the legal reserve in the simplified joint-stock company and raises the following concerns: At that time, by the celebration of this decision by the competent authority, The approved distribution proposal is saved. This data set corresponds to a reclassification of the equity item in which the net profit at the end of the previous period was recorded by the items, in this case the legal reserve to be constituted, and the other items that the company decided to distribute, i.e. other types of reserves, cumulative profits or dividends to shareholders. In this order, we see that if a figure or a modality is not enshrined in the pact that governs it, we consider that although Article 45 of Law 1258, which concentrates us, provides that it is regulated by what is regulated in this law or in its statutes or in the legal norms that govern companies, is anchored. We are of the opinion that only the disposition rules apply to the corporation, but not the tax rules, as well as the so-called legal reserve for corporations. The legal reserve is not mandatory in the simplified joint-stock company – Official Letter 220-113868 dated October 2, 2011. Which companies are obliged to set up and build up the legal reserve? The articles of association may specify the functions that the legal representative will exercise, but if this is not the case, the provisions of Article 26 of Law 1258 apply: Law 1258 of 2008 did not impose on the SAS the obligation to constitute a legal reserve in its inheritance, nor did it subject it to the general rules. They are not obliged to build up reserves. [/vc_column_text] [/vc_column] [/vc_row] [vc_row] [vc_column] [vc_column_text] According to the Companies Act, the simplified joint-stock company (SAS) is not required to recognize the legal reserve in its articles of association.
The law of the chapter that governs the SAS does not explicitly recognize this possibility for this type of company, as is the case for public limited or limited liability companies.