Additional contributions of shareholders to the capital of a limited liability company

The specificity of economic life may lead to a situation in which the company's partners are forced to increase the sources of financing their activities with their own capital contributions. They can cover losses from previous periods by improving the capital structure, as well as they can be subject to current consumption or expenditure on investments. Shareholders, however, should know that the surcharges have specific legal and tax consequences that should not be forgotten.

Additional payments of partners and the Code of Commercial Companies (k.s.h.)

The issue of making additional payments to a limited liability company is governed by Art. 177 to 179 of the Code of Commercial Companies and Partnerships This is done on the basis of the articles of association and a resolution adopted by the shareholders. Its content should specify the amount of the additional payments and the deadline for their contribution to the company, as provided for in Art. 178 § 1.

Since, as the regulations say, "additional payments should be imposed and paid by the partners equally to their shares", the law provides for the imposition of sanctions on a partner who fails to meet his declared obligations towards the company. As a penalty, he is obliged to pay statutory interest due to the delay in paying the subsidy. In addition, the company may demand compensation for the damage resulting from the delay from the partner who fails to comply with the contract. The described sanctions result directly from the act and apply unconditionally, if the articles of association do not provide for other solutions as regards delaying the payment of the additional payment.

The Commercial Companies Code also specifies issues related to the reimbursement of the surcharge. The decision in this respect is also made on the basis of a shareholders' resolution. The surcharge may be refunded provided that:

• the surcharges were not allocated to cover the loss disclosed in the financial statements (i.e. the balance sheet loss),

• a month has passed from the date of the announcement of the intended return in the letter intended for the company's announcements (MSiG),

• will be made evenly to all partners,

• refunded surcharges will not be taken into account when requesting new surcharges.

The above-described conditions mean that, in accordance with the k.s.h. a distinction should be made between surcharges broken down into:

• returnable - intended for current operations or investments, and

• non-returnable - intended to cover the balance sheet loss.

Additional payments by partners and the Corporate Income Tax Act (updop)

Under the tax law, contributions by partners to the company have consequences both in terms of revenues and costs.

The income will be the additional payment made contrary to the provisions of the Code of Commercial Companies and Partnerships. First of all, it is a mistake in the procedure for paying subsidies, but not only. The tax authorities may also treat the surcharge as income, which, due to the intention and purpose of the partners of the company, will be classified for tax purposes as a donation, and not the surcharge referred to in the Commercial Companies Code.

The interest paid or the repair of damage due to late payment of the surcharge will certainly be treated as income.

When considering the issue of costs, one should take into account Art. 16 section 1 point 53 updop: “The subsidies referred to in Art. 12 sec. 4 point 11 (surcharges contributed to the company, if they are contributed in the manner and on the terms specified in separate regulations), and their return ”.

In view of the above, the shareholders' contributions to the company's capital which were contributed in accordance with the procedure specified by the Commercial Companies Code, will not be a tax cost. In accordance with the provisions of the Act, for the entity making the surcharge - the company - the cost will not be the reimbursement of the surcharge to the shareholders.

In order to determine the tax consequences related to the additional contributions to the capital of a limited liability company, it is therefore necessary to first analyze the shareholders' resolution on the additional payment and the articles of association. This will make it possible to determine the actual state of affairs and enable the assessment of the compliance of the subsidy payment procedure with the provisions referred to in the Code of Commercial Companies and Partnerships, and this will allow to determine the tax consequences of the subsidies paid or returned.