The importance of documentary evidence in the dissolution of companies due to losses: Case in Málaga and Benalmádena.
In the commercial field, one of the most sensitive issues is the mandatory dissolution of a company due to losses, regulated in Article 363.1 e) of the Capital Companies Law (LSC). This precept establishes that a company must be dissolved when its net worth is reduced to less than half of the share capital, unless measures are taken to reestablish the equity balance, such as increasing or reducing the share capital or making non-monetary contributions. However, what happens when a debt arises and the company has not submitted the previous year’s accounts? This scenario raises a presumption of a cause for dissolution that can be rebutted by documentary evidence, as we will see below.
Presumption of dissolution for failure to deposit accounts
When a company fails to file its annual accounts with the Mercantile Registry, a presumption arises that the company may be in a loss-making dissolution situation. This is especially relevant if the debt that is the subject of the claim arises in a fiscal year subsequent to that in which the accounts have not been filed. In this case, it is presumed that the company was in an unbalanced financial situation when the debt arose. This presumption has a logical basis: if the accounts have not been filed, there is no public evidence of the actual financial state of the company. However, this presumption is not definitive and can be destroyed if sufficient evidence to the contrary is provided.
Proof to the contrary: The role of the administrator
In many cases, the administrators can destroy this presumption by demonstrating that, although the accounts have not been filed on time, the company maintained an adequate net worth balance in the previous year. This can be achieved through the presentation of financial and tax documentation proving this fact, a typical example being the use of the Corporate Income Tax filed with the Tax Authorities, showing a non-cash contribution to the company’s assets. In a recent case in Malaga and Benalmadena, the defendant administrator was able to prove that, during the year prior to the debt, the company maintained a balance of assets thanks to a corporate agreement of non-cash contribution. This evidence was key to destroy the initial presumption of cause for dissolution.
The value of the corporate agreement and Corporate Income Tax
The corporate agreement of non-monetary contribution is a mechanism used by the partners to increase the net worth without the need to make direct economic contributions. This type of operations are valid as long as they are duly documented and reflected both in the corporate minutes and in the corresponding tax returns.in the mentioned case, the administrator presented as proof both the corporate agreement and the Corporate Tax where the said contribution was recorded. This documentation was sufficient to prove that the company was not in a dissolution situation when the debt that was the object of the claim arose.