Transfer of corporate domicile : Notary Jesús Benavides

Transfer of registered office

Step 1

What is a transfer of registered office?

This is the notarial document by means of which a company formally records the change of location of the place where its effective center of administration and management is located, recording this change in turn in the corresponding Mercantile Registry in order to give it the pertinent publicity before third parties.

Step 3

How much does it cost to sign a transfer of registered office before a notary?

See indicative budget

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.

Step 4

More frequently asked questions

What is the registered office of a commercial company?

Pursuant to Article 9 of the Capital Companies Law, capital companies must have a domicile, which must be located within Spanish territory and must be fixed in the place where their effective administration and management is located, or where their principal place of business or operation is located.

Thus, in order to present itself to the market and operate normally by buying and selling products or offering its services, any company must have a domicile, i.e., a physical space (such as offices, a production plant, etc.) where it can be located for legal purposes, since, logically, it is necessary for any company to report a place where, for example, notices or requirements can be sent, both from the administration and from the public administration.) where it can be located for legal purposes, since, logically, it is necessary for every company to have a place where, for example, notifications or requirements can be sent, both from the administration and from customers or suppliers with whom it contracts, or where any person can go to obtain the necessary information, depending on the case in question, or to be attended in person by a representative of the company.

Regarding this specific place, as indicated above, the law determines that it cannot be fixed in any place, but that the domicile of the company must be located in the place where the company has its effective administration and management (for example, in the place where its headquarters are located and where its main executives responsible for the strategic decision making of the company are located) or, if applicable, in the place where its main establishment or operation is located (for example, the place where the main factory of an industrial company is located).

Where will the location of the company's registered office be defined?

According to the provisions of the Capital Companies Law, and more specifically, Article 23, it is necessary to know that the registered office of the company will be fixed in the bylaws, so that, when the company is incorporated, when the founding partners draft the bylaws, they must reserve a precept of the same (normally, one of the first ones) to fix the registered office of the company.

What is the purpose of the deed of change of registered office?

As has been indicated, when the founding partners of the company incorporate it, they must initially fix a specific registered office, which, logically, does not mean that it must remain unchanged in perpetuity, since if there are changes in the circumstances of the company, it will be necessary to adapt the bylaws to fix the company's registered office in a new location.

Thus, usually, when a company moves its central offices from one place to another, or when it closes its main establishment or operation and moves it to another place, in such a case it is appropriate to grant the deed of modification of the registered office, so that it can be registered in the Mercantile Registry and give publicity to it, thus ensuring that any person, administration or interested party has knowledge of the exact place where the company is physically located and, therefore, where it should be addressed when it wants to contact or notify any question in an irrefutable manner.

Likewise, a change of registered office may be an appropriate remedy when the place where it is currently located may be affected by some kind of geopolitical risk, such as the recent events in Catalonia.

However, from a tax point of view, this does not seem to make much sense at present, since the main tax to which companies are subject, i.e., corporate income tax, is a state tax that does not vary according to the place where the company is located, apart from very particular and exceptional regimes applicable to specific territories, as for example in the case of the Canary Islands, or in the Autonomous Cities of Ceuta and Melilla.

Who is competent to decide on the change of the registered office?

As indicated above, the determination of the registered office of the company will be included in the company's bylaws, so that logically, its change will imply a modification of the company's bylaws.

In view of this, if we consider the provisions of the Capital Companies Act, specifically Articles 160 and 285.1, it is established that the power to amend the bylaws corresponds to the general meeting, i.e., to the shareholders owning the company.

However, as an exception to this general principle, Article 285.2 of the Capital Companies Act establishes that, in the case of a change in the registered office, this decision may also be adopted by the administrative body, provided that two requirements are met:

  • The new registered office must be located in Spanish territory.
  • That there is no provision in the bylaws expressly stating that this competence does not correspond to the administrative body.

Thus, if these two requirements are met (which happens in most cases in practice), the change of the registered office may be agreed upon by the administrative body, in addition to the general meeting, as would ordinarily be the case, and as would be the case if either of the two requirements described above are not met.

What procedure must be followed if the decision is to be taken by the general meeting?

If any of the circumstances described in the preceding question are not met, i.e., the new registered office will be outside Spain or the bylaws prohibit the management body from changing the registered office, in such a case the decision to change the registered office must be adopted by the general meeting of shareholders.

To this end, the directors or partners making the proposal must draft the full text of the proposed amendment, i.e., they must propose the new wording of the article of the bylaws relating to the registered office, and also, in the case of a corporation, they must also draft a written report justifying the amendment (Article 286 of the Capital Companies Act).

Once this procedure has been completed, the corresponding general meeting must be called, and the notice of the meeting must clearly state the points to be amended and state the right of all shareholders to examine at the registered office the full text of the proposed amendment and, in the case of corporations, the report thereon, as well as to request the delivery or sending of such documents free of charge (Article 287 of the Capital Companies Act).

Once the day and time for the general meeting have arrived, the shareholders of the company shall deliberate and agree on the resolution to amend the bylaws, for whose approval, as required by Article 288 of the Capital Companies Act, shall be required:

  • For limited liability companies, the reinforced majority expressed in Article 199 of the Capital Companies Law, which requires the favorable vote of more than half of the votes corresponding to the shares into which the capital stock is divided.
  • For corporations (and limited partnerships by shares), the applicable rules will be those set forth in Articles 194 to 201 of the Capital Companies Law (whose regulation is extensive and it is recommended to consult it for further details), in which, by way of summary, the presence at the general meeting of shareholders representing at least 50% of the subscribed capital with voting rights (on first call) will be required, with each amendment to the bylaws to be voted separately and a favorable vote of the absolute majority of the capital stock being necessary for its approval.

Finally, once the resolution has been adopted at the general meeting by the majorities and with the formal requirements indicated above, it will be necessary to record the resolution in a public deed, which must be registered in the corresponding Mercantile Registry.

See more frequently asked questions

What are the tax implications of a change of registered office?

On this matter, it is necessary to take into account that the modification of the registered office of the commercial companies may also entail changes in the tax domicile of the company, which in accordance with Article 48 of Law 58/2003, of December 17, 2003, General Tax Law, will be the place of location of the taxpayer in its relations with the Tax Administration, which must be established for legal entities at their registered office provided that their administrative management and the management of their business is effectively centralized there. 

In any case, interested parties should bear in mind that the aforementioned tax provision establishes the obligation for all taxpayers to notify the tax authorities of a change of tax domicile, which is understood to be the case on most occasions in which the registered office of a capital company is changed.

Is it possible to transfer the registered office of the company outside Spanish territory?

Indeed, as a particularity to what has been explained so far, it is necessary to point out that in the event that the company wishes to transfer its domicile outside Spanish territory, this will be possible, provided that all the requirements and formalities provided for this purpose in Law 3/2009, of April 3, on structural modifications of mercantile companies are complied with.

Therefore, in such a case, this transfer outside the Spanish jurisdiction will be possible, provided that it is allowed by the regulations of the State of destination (as it cannot be otherwise), which to this effect determines that this jurisdiction allows the maintenance of the legal personality of the company.

On this basis, the directors of the company intending to transfer its domicile abroad must draw up and sign a transfer project, which will contain the following information:

  • The name and current address of the company, as well as the identification data of registration in the Mercantile Registry.
  • The proposed new registered office.
  • The bylaws that are to govern the company after its transfer, including, if applicable, the new corporate name.
  • The planned timetable for the transfer.
  • The rights provided for the protection of partners, creditors and employees.

Once such draft has been drawn up, the directors must file a copy of the draft transfer with the Mercantile Registry for its deposit, which will be communicated to the Central Mercantile Registry for the purpose of announcing its publication in the Official Gazette of the Mercantile Registry.

Additionally, the administrators must also prepare a report explaining and justifying the relocation project, both in terms of its legal and economic aspects, as well as in relation to the consequences for its partners, creditors and workers.

Once all these requirements have been met, it is necessary to know that, in this case, the competence for the approval of the transfer will be in the hands of the general shareholders' meeting, which must be duly convened by means of an announcement that must also be published in the Official Gazette of the Commercial Registry.

Finally, it should be noted that in the event that the transfer is approved, the shareholders who voted against it will have the right to withdraw from the company (under the terms established in the Capital Companies Law) and that, likewise, the creditors who consider themselves harmed by the decision will have the right to oppose it, under the terms established by law in the case of opposition to a merger.

How can I execute a deed of change of registered office?

In order to execute a deed of change of registered office, it is only necessary to contact the notary's office (by calling the telephone number of the notary's office or at the e-mail address and make an appointment on the day and time 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.

Who will be empowered to go to the Notary's office to sign the deed of change of registered office?

Pursuant to Article 108 of the Mercantile Registry Regulations, regarding the persons empowered to notarize, the notarization of corporate resolutions adopted by the General or Special Meeting or by a collegiate administrative body, corresponds to the person empowered to certify them, which, by virtue of Article 109 of the aforementioned regulations, shall correspond, in relation to the minutes and resolutions of the collegiate bodies of mercantile companies:

  • In the event that the company is governed by a board of directors, the secretary and, if applicable, the deputy secretary of the board of directors, whether or not he/she is a director. The certifications will always be issued with the approval of the chairman or, if applicable, the vice-chairman of said body.
  • To the sole administrator, or to any of the joint administrators, when the company is governed by this type of administrative body.
  • To the administrators who have the power of attorney in the case of joint or joint administration.

In all these cases, it will be necessary that the persons issuing the certification have their position in force at the time of issuance, since in order to register the agreements contained in the certification, the position of the certifier must have been registered, previously or simultaneously.

And, in any case, as a formal matter, it will also be necessary to take into account that agreements that do not appear in approved and signed minutes or in notarized minutes may not be certified.

The decisions of the sole shareholder, recorded in the minutes under his signature or that of his representative, may be executed and formalized by the shareholder himself or by the directors of the company.

It may also be carried out by any of the members of the administrative body with a valid appointment and registered in the Mercantile Registry, when they have been expressly empowered to do so in the corporate deed or in the meeting in which the resolutions have been adopted.

When will I receive the delivery of my deed of change of registered office?

If the interested party so desires, the authentic copy of the deed can be delivered to him/her on the same day of the signing, but in such case, he/she must go to the Commercial Registry to register it, since this is a necessary step for the agreed modification to be fully effective.

Can I entrust the notary's office with the registration of the deed in the Commercial Registry?

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.

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Step 5

Where can I consult the applicable regulations?

Step 6

Make an appointment