Апорт в търговско дружество | Адвокатска кантора "KGK"

Imagine the following situation: you and some friends decide to set up a company. Two of you have cash for the capital, but the third one has a workshop with machinery that you will need for the business anyway. It is only logical to ask – can he contribute the machinery directly as his share, instead of selling it and contributing money?

He can. This is called an in-kind contribution (apport) – contributing assets instead of money to the capital of the company. It sounds simple, but the procedure has its own peculiarities. Here is how it works.

What is an in-kind contribution and why does it exist at all?

Usually, the capital of a company consists of the cash contributions of the partners. The law, however, allows part or all of the capital to be contributed in another form as well.

The logic is simple: if one of the partners has machinery that the company will need for its activity, or real estate on which the company can build facilities for sale or rental, why should these things not constitute a contribution to the capital? This is precisely the in-kind contribution – a non-monetary contribution to the capital of the company.

This article will introduce you to in-kind contributions in capital companies – the limited liability company (OOD), the joint-stock company (AD), and the partnership limited by shares. In partnerships (the general partnership and the ordinary limited partnership), matters are simpler – the partners themselves determine the value of their contributions, because they are in any case liable for the company’s obligations with all of their personal property.

Who and what can be contributed in kind?

The good news: the restrictions are surprisingly few.

What can make an in-kind contribution? Any partner – whether a natural person or a legal entity. You can make an in-kind contribution both when incorporating a new company and when increasing the capital of an already existing one. If the new company has not yet been incorporated, that is not a problem – it does not yet need to have an exact name or other identifying features.

What can be contributed in kind? Here the range is extremely wide. There are two conditions: the asset must have a monetary value, and that value must be capable of being appraised. The following fall within these criteria:

movable and immovable property (machinery, equipment, vehicles, real estate);
receivables;
securities;
aggregations of assets – for example, an entire commercial enterprise;
intellectual property rights (trademarks, patents, etc.).

What cannot be contributed in kind? The law expressly excludes future labour or services on the part of the partner. That is, you cannot say “my share will be to work in the company for the next three years.” Likewise, an already established right of use cannot be contributed in kind, because it is non-transferable by its nature.

The procedure step by step

And this is where it gets interesting. Unlike a cash contribution, which is simply transferred to an account, an in-kind contribution involves an entire separate procedure. Why? In order to protect the interests of both the creditors and the other partners – after all, no one wants something to be contributed to the company that is claimed to be worth EUR 100,000 but is in fact worth EUR 5,000.

Step 1: Request for appraisal

The first step is a request to the Commercial Register for the appointment of experts tto appraise the asset. You file this request:

in person (if you are a natural person);
through a legal representative (if you are a legal entity);
through an authorised attorney (this option is always valid).

What must the request contain?

a full description of the non-monetary contribution;
sufficient data to индивидуализира предметът ѝ;
documentsto individualise its subject matter;

Which documents? It depends on the type of asset – notarial deeds or court decisions for real estate, contracts and invoices for movable property, accounting entries for receivables, and so on.

A small detail that may be useful to you: in the request you may indicate specific experts you wish to be appointed, or at least a particular region they should come from (for example, if the asset is in Burgas, it makes no sense for appraisers from Vidin to inspect it). This, however, is not binding – the registration officials may depart from your proposals. And no state fee is due for the filing of the request itself. not се дължи държавна такса.

Step 2: Appointment of experts

If the registration official finds that the request complies with the law, they issue an act appointing the experts. The act states who they are and what remuneration is due to them.

Step 3: The appraisal itself

Once you have paid the deposit for the remuneration and the experts have accepted the task assigned to them, a 14-day periodbegins to run, within which they must prepare the appraisal.

Their report must contain:

a full description of the non-monetary contribution;
the method of appraisal;
the value obtained;
its correspondence with the size of the capital share, or with the number, nominal value, and issue value of the shares that the contributor will subscribe for.

The official reviews the appraisal. If everything is in order, they accept it. If not, they give the experts instructions to remedy the irregularities and a deadline for doing so.

Step 4: The contributor’s decision

When the appraisal is ready, you have a choice. If you agree with it, you proceed to the incorporation of the company or the increase of the capital. If you do not agree , you have two options: either to participate in the company with a cash contributionвместо това, или просто да откажете instead, or simply to decline to participate. No one can force you to accept an appraisal that you consider unfair.

Step 5: Incorporation or increase of capital

Here the general rules of the Commerce Act apply, plus a few specific requirements for the non-monetary contribution. In addition to the other documents, you must submit:

the appraisalprepared by the experts;
a notarised declaration on your part that you agree to your asset serving as a non-monetary contribution.

The contribution itself must be described in detail in the articles of association (or the statutes). And one important rule – the value at which it is recorded in the capital may not be higher than the experts’ appraisal. Lower – yes; higher – no.

Step 6: Final step

From the moment the company (or the change in the capital) is entered in the Commercial Register, ownership of the asset passes to the company.If real estate is involved, the in-kind contribution is additionally recorded in the Property Register as well..

Conclusion

We will be honest – the procedure looks simpler on paper than it is in practice. The numerous peculiarities, the requirements for the request, the requirements for the experts’ report – all of this can lead to refusals and delays. Coordination between the various participants in the proceedings sometimes does not run smoothly either.

Here, experience matters. An attorney who has walked this path can foresee where the stumbling blocks will appear, how to formulate the request so that it is not refused, and how to react if the appraisal does not meet the requirements. That is why, in practice, the involvement of an attorney is often decisive for the swift and successful completion of the procedure.

The team at KGK Law Firm knows the procedure for making non-monetary contributions to capital companies in detail. Our experience has taken us through the peculiarities and difficulties that accompany this process, and in resolving which a combination of quick judgment and a creative approach often helps. If you have such a procedure ahead of you – get in touch with us.