It is the notarial document to which a company that wishes to end its activity and see its legal personality extinguished must resort, since by means of this document it may, from a legal point of view, cease its economic activity in an orderly manner, settling any debts it may have with its creditors and, in the last instance, if any, reintegrating the remaining corporate assets to its partners.
This is a merely informative and non-binding estimate. This estimate is calculated based on two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
In the same way that has been explained when analyzing the rest of the institutions of corporate law, they can be defined as legal instruments that our legal system has designed to promote and facilitate economic and commercial activities that create wealth and employment for the community society, all this through the execution of a contract by which two or more persons undertake to pool money, goods or industry, with the intention of sharing the profits among themselves, thus creating entities with their own legal personality and with assets separate from those of their partners with which to finance their social activity and with which they can respond to the debts and social liabilities that they contract.
On this basis, of course, companies can experience many different situations and dynamics throughout their lives, so that in certain periods companies can experience upward cycles, with growing and positive results, or, on the contrary, negative dynamics of adverse results with losses.
Thus, companies, like individuals, are born, grow and, on occasions, due to the exhaustion of their productive activity or business model, may reach a point where their owners no longer wish to maintain the activity, so that they must be terminated or closed down. It is therefore in response to this reality that the legal system has designed a series of mechanisms to deal with this final period of commercial companies, in order to guarantee the rights and interests of all the operators linked to them, among which we can include the legal figures of the dissolution and liquidation of commercial companies, which are currently regulated in articles 360 and following of the Capital Companies Act.
The dissolution, in a generic way, can be defined as a legal act whose purpose is to initiate the process of liquidation of the company and, therefore, of its legal personality. By means of the dissolution, the company will externalize its will to begin to carry out all the necessary actions to put an end to its life cycle, without this implying the end of its legal personality or its productive, commercial or economic activity.
In order for a company to be dissolved, it must incur in one of the causes that the legislator has foreseen, which will be developed below so that the reader can understand them adequately.
1) Dissolution by operation of law:
Firstly, the law, in Article 360 of the Capital Companies Law, has provided for a series of causes for dissolution that have been denominated as "full dissolution", i.e., those cases in which dissolution is imposed by an imperative and unavoidable legal requirement. Thus, capital companies will be dissolved by operation of law in the following cases:
In the case of "full dissolutions", the reader should also bear in mind that in these cases, the registrar, ex officio or at the request of any interested party, will record the full dissolution on the sheet open to the company.
Finally, it is also necessary to state that, in relation to situations of insolvency of companies, the declaration of insolvency of the capital company will not, in itself, constitute a cause for dissolution.
However, the opening of the liquidation phase in the insolvency proceedings will result in the dissolution of the company by operation of law and, in such case, the insolvency judge will record the dissolution in the resolution opening the liquidation phase of the insolvency proceedings (Article 361 of the Capital Companies Law).
2) Dissolution due to a finding of the existence of a legal or statutory cause:
A second case of dissolution of commercial companies will be when there is legal or statutory cause for such dissolution, for which it will be necessary for such cause to be established by the general meeting or by judicial resolution (article 362 of the Capital Companies Law).
Therefore, in order to know these specific causes of dissolution, it will be necessary to refer to Article 363 of the aforementioned body of law, which establishes that the capital company must be dissolved:
Likewise, the limited partnership by shares must also be dissolved upon the death, termination, incapacity or opening of the liquidation phase in the insolvency proceedings of all the general partners, unless within a period of six months and by amendment of the bylaws a general partner is incorporated or the transformation of the partnership into another type of company is agreed upon.
In all these cases, the dissolution of the company will require a resolution of the general meeting (i.e. of the owners of the company) adopted (Article 364 of the Capital Companies Act):
With regard to the calling of the general meeting to adopt this resolution (Article 365 of the Capital Companies Law), it is necessary to know that it is the administrators who must call the general meeting within two months to adopt the dissolution resolution or, if the company is insolvent, to file for insolvency proceedings. However, any shareholder may request that the directors call the meeting if, in its opinion, there is any cause for dissolution or the company is insolvent. In any case, the general meeting may adopt the dissolution resolution or, if it is on the agenda, the resolution or resolutions necessary to remove the cause.
However, interested parties should also be aware that, if the meeting is not called, is not held, or if the resolution in question is not adopted, any interested party may request the dissolution of the company before the commercial court of the company's domicile, which must be directed against the company.
Likewise, the administrators are obliged to request the judicial dissolution of the company when the corporate resolution is contrary to dissolution or cannot be achieved. Such request must be made within two months from the date scheduled for the meeting to be held, when the meeting has not been held, or from the day of the meeting, when the resolution is contrary to dissolution or has not been adopted (Article 366 of the Capital Companies Act).
Finally, it is necessary to bear in mind that the administrators will be jointly and severally liable for the corporate obligations subsequent to the occurrence of the legal cause for dissolution if they fail to comply with the obligation to call a general meeting within two months to adopt, if appropriate, the resolution for dissolution, The administrators who do not request the judicial dissolution or, if applicable, the bankruptcy of the company, within two months from the date scheduled for the meeting, when the meeting has not been held, or from the day of the meeting, when the resolution has been against dissolution, will also be jointly and severally liable.
In these cases the corporate obligations claimed will be presumed to be of a date subsequent to the occurrence of the legal cause of dissolution of the company, unless the administrators prove that they are of an earlier date (article 367 of the Capital Companies Act).
3) Dissolution by mere resolution of the general meeting:
Finally, the legislator has provided for an optional or voluntary dissolution option, by virtue of which the capital company may be dissolved by mere resolution of the general meeting adopted with the requirements established for the amendment of the bylaws (Article 368 of the Capital Companies Act).
Given the relevance of the decision adopted, it must be publicized to the market so that all operators are aware of it, so that the dissolution of the company must be registered in the Commercial Registry, in which, in addition, the commercial registrar will send, ex officio, telematically and at no additional cost, the registration of the dissolution to the Official Gazette of the Commercial Registry for its publication (Article 369 of the Capital Companies Act).
Indeed, the dissolution of capital companies is a revocable and reversible decision, since the general meeting may agree to the return of the dissolved company to active life provided that the cause for dissolution has disappeared, the book assets are not less than the capital stock and the payment of the liquidation quota to the shareholders has not begun. However, reactivation may not be agreed in cases of dissolution by operation of law.
In these cases, the reactivation resolution will be adopted with the requirements established for the amendment of the bylaws, taking into account that the shareholder who does not vote in favor of the reactivation has the right to withdraw from the company (Article 370 of the Capital Companies Act).
The agreement to dissolve the company will have a series of consequences, which will be developed below so that the interested parties can understand the main implications of this legal act.
Thus, the dissolution of the company opens the liquidation period, during which the dissolved company will retain its legal personality, but will have to add to its name the expression "in liquidation". During this period, it will then be up to the company to arrange its assets and liabilities for the forthcoming disappearance of the company, under the terms set out below.
During the liquidation period, the provisions of the bylaws will also be observed regarding the convening and meeting of the general shareholders' meetings, to which the liquidators will report on the progress of the liquidation so that they may agree on what is in the common interest (Article 371 of the Capital Companies Act).
With the opening of the liquidation period, the administrators will cease to hold office, which will cause the extinction of their power of representation of the company. In any case, if they are required to do so, they must collaborate in the liquidation operations (Article 374 of the Capital Companies Law).
Once the directors have been removed, the management of the company will be assumed by the liquidators, whose main function will be to ensure the integrity of the company's assets until they are liquidated and distributed among the shareholders (Article 375 of the Capital Companies Law).
In relation to their appointment, it is necessary to indicate that unless otherwise provided in the bylaws or, failing this, in the event of the appointment of liquidators by the general meeting of shareholders that resolves the dissolution of the company, those who were directors at the time of the dissolution of the company will become liquidators (Article 376 of the Capital Companies Act), who, unless otherwise provided in the bylaws, will hold office for an indefinite period of time.
The liquidators, unless otherwise provided for in the bylaws, will be individually empowered to represent the company, which will extend to all those operations that are necessary for the liquidation of the company. Thus, for example, the liquidators may appear in court on behalf of the company and enter into transactions and arbitrations when it is in the company's interest to do so (Article 379 of the Capital Companies Act).
With regard to the filling of vacancies that may eventually arise in the position of liquidator, it is necessary to specify that in accordance with Article 377 of the Corporations Law, in the event of the death or termination of the sole liquidator, of all the joint liquidators, of any of the liquidators acting jointly, or of the majority of the liquidators acting collegially without substitutes, any shareholder or person with a legitimate interest may request the Secretary of the Board of Directors of the Company to fill the vacancy in the position of liquidator, of any of the liquidators acting jointly, or of the majority of the liquidators acting collegially, without there being any alternates, any shareholder or person with a legitimate interest may request the Court Clerk or Commercial Registrar of the registered office to call a general meeting for the appointment of the liquidators. Likewise, any of the liquidators remaining in office may call a general meeting for that sole purpose.
In such case, if the meeting convened does not proceed with the appointment of liquidators, any interested party may request their appointment to the Court Clerk or Commercial Registrar of the registered office, whose resolution (agreeing or rejecting the appointment) may be appealed before the Commercial Court.
Likewise, as with the directors, the liquidators may be removed from their position (Article 380 of the Capital Companies Act), which may be agreed by the general meeting even if it is not included in the agenda.
Finally, in this section it should be noted that in the event of liquidation of corporations, shareholders representing one-twentieth of the capital stock may request the Court Clerk or the Commercial Registrar of the company's registered office to appoint an auditor to oversee the liquidation operations, taking into account that if the company has issued and outstanding bonds, the bondholders' syndicate may also appoint an auditor.
Ordinarily, given the eminently private nature of the commercial activity of the companies, it does not seem to be necessary or advisable for the public administrations to intervene directly in them. However, the legislator has provided for a series of exceptional cases in which such intervention is possible.
Thus, when the Government, at the request of shareholders representing at least one-fifth of the capital stock, or of the personnel of the company, deems it advisable for the national economy or for the social interest to continue the corporation, it may so decide by Royal Decree, which will specify the form in which the corporation is to subsist and the compensation that the shareholders are to receive upon expropriation of their rights.
In any case, the royal decree will reserve to the shareholders, meeting in a general meeting, the right to extend the life of the company and to continue the operation of the company, provided that the resolution is adopted within three months of the publication of the royal decree (article 373 of the Capital Companies Act).
Likewise, in the case of corporations, when the assets to be liquidated and divided are large, the shares or debentures are distributed among a large number of holders, or the importance of the liquidation for any other reason justifies it, the Government may appoint a person to intervene and preside over the liquidation of the company and to ensure compliance with the laws and the corporate bylaws (Article 382 of the Capital Companies Law).
As has already been indicated from the first lines of analysis of this institution, the dissolution of the company has the purpose of carrying out a series of acts, all of them aimed at extinguishing the company in an orderly manner, ensuring the rights and interests of all the concurrent operators in the company.
Thus, pursuant to the requirements of Article 383 of the Capital Companies Law, the liquidators have an initial duty to prepare an inventory and a balance sheet of the company within three months of the opening of the liquidation, with reference to the day on which the company was dissolved.
Likewise, during their term of office, the liquidators shall be responsible for the liquidation:
In order to carry out all these operations, the liquidators will not have an indefinite period of time, since in accordance with Article 389 of the Capital Companies Law, after three years have elapsed from the commencement of the liquidation without the final liquidation balance sheet having been submitted for approval by the general meeting, any shareholder or person with a legitimate interest may request the court clerk or commercial registrar of the registered office of the company to remove the liquidators.
In any case, finally, if the liquidator's task has been successfully completed, i.e. once the liquidation operations have been concluded, the liquidators will submit to the general meeting for approval a final balance sheet, a full report on the liquidation operations and a plan for the division of the resulting assets among the shareholders.
This draft must be submitted to the resolution of the general meeting, which, if approved, may be challenged by the shareholders who did not vote in favor of it, within two months from the date of its adoption. In such a case, upon admitting the challenge, the judge will agree ex officio the preventive annotation of the same in the Mercantile Registry (Article 390 of the Capital Companies Act).
Finally, it is necessary for the interested parties to bear in mind the need for diligence and rigor in the performance of the liquidator's duties, since in accordance with Article 397 of the Capital Companies Law, they will be liable to the shareholders and creditors for any damage they may have caused with fraud or negligence in the performance of their duties.
At this point in the process, that is to say, once the liquidator has completed his work and the general meeting of the company has approved the division project, it will finally proceed to execute it and pay each partner the liquidation quota that corresponds to him according to his share in the capital stock.
This division of the assets resulting from the liquidation will be carried out in accordance with the rules established in the bylaws or, in the absence thereof, those established by the general meeting, without the liquidators being able to pay the liquidation quota to the shareholders without first paying the creditors the amount of their credits or without depositing it in a credit institution in the municipality in which the registered office is located (article 391 of the Capital Companies Act).
Thus, once the corporate debts have been satisfied or insured, the partners will receive their liquidation quota (i.e., the pecuniary amount corresponding to them, obtained once the assets of the company have been realized), in relation to which it is necessary to indicate that, unless otherwise provided for in the corporate bylaws, the liquidation quota corresponding to each partner will be proportional to his share in the capital stock.
As regards the manner of receiving this liquidation quota, by virtue of Article 393 of the Capital Companies Law, the interested parties should be aware that unless the shareholders unanimously agree, they will have the right to receive the quota resulting from the liquidation in cash.
Likewise, the bylaws may establish in favor of one or more partners the right to have the quota resulting from the liquidation satisfied by means of the restitution of the non-monetary contributions made or by means of the delivery of other corporate assets, if they remain in the corporate assets, which will be appraised at their real value at the time of approving the project of division among the partners of the resulting assets. In this case, the liquidators must first dispose of the other corporate assets and if, once the creditors have been satisfied, the resulting assets are insufficient to satisfy the liquidation quota of all the partners, the partners entitled to receive it in kind must first pay the corresponding difference in cash to the other partners.
Finally, regarding the payment of the quota, it is necessary to know that once the term to challenge the final liquidation balance has elapsed without any claims having been filed against it or the sentence that had resolved them has become final, the liquidation quota will be paid to the partners, always taking into account that when there are unmatured credits, payment will be previously assured.
On the other hand, the liquidation quotas not claimed within ninety days following the payment agreement will be deposited in the General Depository, at the disposal of their legitimate owners (Article 394 of the Capital Companies Law).
Once all the actions described to date have been carried out, if the dissolved company finally wishes to terminate its existence definitively, putting an end to its legal personality, it will have to resort to the legal act of extinction, which, like the dissolution, will be materialized by means of a new public deed.
The same, which shall be granted by the liquidators of the company, shall contain the following statements:
The final liquidation balance sheet and the list of the partners, stating their identity and the value of the liquidation quota that would have corresponded to each one (Article 395 of the Capital Companies Law), must be included in the public deed.
In any case, once the aforementioned public deed has been executed, it will be registered in the Mercantile Registry, in which the final liquidation balance sheet will be transcribed and the identity of the partners and the value of the liquidation quota corresponding to each one of them will be stated, and it will be expressed that all the entries relating to the company are cancelled. Likewise, the liquidators will deposit in the Mercantile Registry the books and documents of the extinguished company (Article 396 of the Capital Companies Law).
Finally, it is necessary to specify that in the event that, once all these procedures have been carried out, corporate assets appear, the liquidators must award to the former partners the additional quota corresponding to them, after converting the assets into cash when necessary. On the other hand, if instead of assets unsatisfied liabilities appear, the former partners will be jointly and severally liable for the unsatisfied corporate debts up to the limit of what they would have received as liquidation quota, without prejudice to the liability of the liquidators.
From the point of view of the individual shareholder, it is necessary to take into account that, for Personal Income Tax purposes, the difference between the value of the capital stock or the market value of the assets received and the acquisition value of the corresponding security or equity interest will be considered as a capital gain or loss.
It should also be taken into account that the transaction will be subject to the Transfer Tax and Stamp Duty, in its modality of corporate transactions, being the current tax rate in Catalonia of 1% (Royal Legislative Decree 1/1993, of September 24).
In order to execute a deed of dissolution and/or extinction of a company, it is only necessary to contact the notary's office (by calling the notary's office telephone number or email address mercantil@jesusbenavides.es) and make an appointment on the day and time that is most convenient for the grantors.
On the agreed date and time, the grantors must simply go to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drafted based on the minimum legal content required and the forecasts and needs of the clients in question.
In any case, if the interested parties need assistance in relation to the models of certificates resulting in the adoption of the necessary corporate resolutions for the statutory amendments to be dealt with, they can contact the notary's office for assistance and advice in this regard.
If the interested party so desires, the authentic copy of the deed of dissolution or liquidation can be delivered to him/her on the same day of the signing, but in such case, he/she will have to go to the Commercial Registry to register it.
Of course, if so desired, it is possible to entrust this management to the notary's office itself, which will telematically send the deed to the Commercial Registry in order to obtain its registration.
Once this has already taken place, the authentic copy of the deed will be delivered to the grantors, which will be much more useful, since from that moment on the document will be able to have all its effects.
It is enough that the administrator or representative of the company goes to the notary's office with his ID card. In the case of a foreign person, he/she must present to the notary his/her original and valid passport. In addition, the NIE must be presented together with the aforementioned passport.
Normally it will be necessary to provide the certificate of the resolution of the general meeting or of the decision of the sole shareholder resulting in the dissolution and liquidation of the company. The certificate of the corporate resolution must expressly state the cause by virtue of which the dissolution / liquidation of the company is agreed. The notary's office can advise and assist in the preparation or preparation of this type of certificate at no additional cost.
In order to dissolve and, in turn, liquidate a company, it is essential to provide a balance sheet reflecting the assets and liabilities of the company. In addition, in the event that the balance sheet shows a positive figure (because its assets are greater than its liabilities), it must be distributed and allocated proportionally to the quotas of the existing partners.
The relevant documentation relating to the company within which the resolution to dissolve and liquidate the company is adopted must be submitted to the notary. For this purpose, the authentic copy of the deed of incorporation of the company must be provided, as well as any subsequent deed modifying the articles of association. However, from the notary's office we can access telematically to the Mercantile Registry where the company is registered in order to verify part of such documentation and corroborate the data in force at the moment of granting the deed.
Practically every time someone goes to sign at a notary's office in the name and on behalf of a company, it is mandatory to identify at that moment, before the notary, which partners (even if not present) within the company hold more than 25% of the capital stock of the company at that moment. In order to carry out such identification, the Law obliges to exhibit the authentic copy of the corresponding notarial deed called "Acta de titular real".
If the persons issuing the certificate of the corporate resolution of dissolution / liquidation do not go to the notarial office to execute the public deed (since a different representative of the company does so) and these persons have not previously signed other documents in the notarial office in question (so that it is not possible to validate their signature), it will be necessary that said certificate of the corporate resolution be provided with the signatures notarized, in order to verify its validity.
If the former dismissed administrator does not appear at the execution of the deed to the effect of being notified of his dismissal, it will be necessary to proceed to the personal notification of said dismissal or, if applicable, to provide a written document of the former dismissed administrator, with his notarized signature, in accordance with Article 111 of the Regulations of the Mercantile Registry, in order to be notified of his dismissal.
