28 Nov Reserva Legal De Una Sociedad Civil
It is necessary to carry out the procedures for this jointly, since its fulfillment constitutes the appropriate legal sphere for the start of the commercial activity of the company. Although the period with which the company was founded has expired, it is not necessarily dissolved, because if it continues to operate, its duration is understood as extended indefinitely, without the need for a new corporate document (art. 2721 CCDF). Article 229 of the General Companies Law stipulates that at least ten per cent of the distributable profit of each year, less income tax, must be transferred to a legal reserve until it reaches an amount equal to one-fifth of the share capital. In the event of losses©during a financial year, they are offset by profits or reserves of free disposal and, failing that, by the© legal reserve, which must be replenished. The company, for its part, can capitalize on the legal reserve and is obliged to replenish it, which is done using the profits of the following years. The reserve system is legally structured in such a way that the company is obliged to strengthen the share capital, for which all shareholders are responsible, and the creditors of the shareholders. The resulting protection allows the company to carry out its activities without prejudice to third parties. This is why reserve funds can never be used to pay dividends to shareholders. In this case, since the amount of $28,715.00 is required to complete the legal reserve of 20% of the share capital. As can be seen, the accumulated legal reserve of $31,285.00, a figure that still does not exceed the amount of $60,000.00, which corresponds to one-fifth of the share capital (20%), so that $28,715.00 remains to be separated from the profit. Since they do not constitute share capital as such, reserves are considered profits, which are included in the company`s own funds as passive capital, although they must have a counterpart in the assets.
This means that they are part of the financing of the company as such and therefore cannot be sold for distribution as dividends, except in certain special cases. The net profit mentioned here is the profit determined in the accounts, which differs significantly from the tax profit or the annual profit of the company. According to Article 452 of the Commercial Code, companies are required to set up a legal reserve consisting of 10% of the profit of each after-tax period up to a maximum of 50% of the subscribed capital, the purpose of which is to protect the company`s assets, so that it is intended to cover the losses of the following years in which it was used. if need be. When using the reservation, the corresponding value will be debited from the reservation account and credited to the account corresponding to the use of the reservations. 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. The great difference between one and the other lies in the nature and purpose of each of them, because although the civil has a mainly economic nuance, his purpose is not to make profit, unlike the merchant, which is precisely this commercial speculation is his main characteristic. In Colombia, some business companies, such as corporations, are required by law to create a reserve to protect the company`s assets in the event of losses. The law does not distinguish between the type or category of companies, so that whatever it is, by the mere fact that it is foreign, it must constitute the legal reserve under Article 452 of the Commercial Code.
Each year, this exercise is carried out until the legal minimum of the reserve is reached, and now the company is free to continue to allocate funds or not to use them or to use less than 10% if it wishes. It is important to note that if the legal reserve is distributed for purposes other than that of its capitalization, the director may repeat against the shareholders the value of what is delivered to them, and According to the above-mentioned device, by agreement of the partners, the object of the company could be transformed in such a way that it is arranged for the execution of commercial acts and therefore have a commercial character. “Application of anonymous rules on legal reserves, balance sheets and profit-sharing. The company constitutes a legal reserve, subject to the rules on anonymous public access. The same rules apply to annual balance sheets and profit-sharing. `The losses shall be offset by the reserves set aside for that purpose and, failing that, by the legal reserve. Reserves intended to absorb certain losses may not be used to cover other losses unless the assembly so decides. In this context, L.C. Antonio Castillo Sánchez, Tax Advisor at IDC Asesor Fiscal, Jurídico y Laboral, explains the procedure for creating the legal reserve on profits in 2019, the case of a variable company created in 2016, as shown below: There is no legal provision prohibiting the transition from a commercial law to a civil law. since Article 227 of the LGSM provides that companies incorporated in one of the forms envisaged by the LGSM may take any other legal form.