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Las sociedades mercantiles en España y Estados Unidos.
Definition of “sociedades mercantiles” Aim: obtain profits. It has legal status. They are regulated by the Commercial Law in force.
Sole Proprietorship USA Most of the small businesses in the United States are operated as sole proprietorships. The simplest form and usually chosen by the one-person business. The owner and worker are the same person.
Sole Proprietorship USA Not a separate entity from the owner. Profits and losses of the business are simply part of the owner's personal income Suitable for a business where personal liability isn't a big worry
Advantages of sole propiertorship Inexpensive to start Simple to run No double taxation on profits Transferability
Disadvantages of sole propietorship Unlimited personal liability for business liabilities. Insurance may be purchased to cover many of the risks of running Ownership is limited to one person Employees
Management of a sole propietorship May hire employees to help manage the business Legal responsibility for the decisions made by the employees Total management and control over the company.
Formation of a sole propietorship Complete the general registration requirements that apply to all new businesses. No special forms. Most cities and many counties do require businesses to register with them and pay at least a minimum tax business license or tax registration certificate
Formation of a sole propietorship When naming your business may need to file a "Doing Businesss As (DBA)" or "Fictitious Name" statement Original name Licenses or permits required depends on the nature of the business. Employer identification number from the IRS
Taxation of a sole propietorship Not subject to tax withholdings estimated taxes Estimated tax payments are due quarterly, on April 15, June 15, September 15 and January 15 of the subsequent year. The profits/losses from the operations of the business are reported on on Schedule C of IRS Form 1040 (standard annual tax return).
Empresa Individual in Spain Individual entity Simplest and most common form of businnes One person Autonomous Employees
Empresa Individual in Spain Small and family business Person with legal capacity Disposal of his own assets Regular commercial, industrial or professional activity
Advantages of an Empresa Individual No specific legal regulation No minimal legal working capital No previous formalities required
Disadvantages of an Empresa Individual Unlimited personal liability for business liabilities. The owner is responsible for all debts incurred by the company. Instability Dedication and effort Pressure Sense of loneliness
Formation of an Empresa Individual Starting census declaration and register in the IAE (Impuesto de actividades económicas) Inscription with the Social Security in an special regime.
Formation of an Empresa Individual If hiring employees: inscription of the sole propietorship with the social security and the obtaining of the management number. Affiliation of the employees with the general regime of the Social. Security.
Taxation of an Empresa Individual - IRPF -Direct estimation: Register of every single bill. Liquidation of its taxes, according to: IVA (VAT): Difference between the VAT you charge to your customer and the VAT to you by your providers is credited to Hacienda (IRS) IRPF
Taxation of an Empresa Individual - Objective estimation: A tax payable is fixed. No obligation to register the bills nor keeping accounts.
“Comunidad de bienes” and “coownership”: Similarities. Definition: according to section 392 of the Civil Code “comunidad de bienes” exits when some assets are owned by more than one person. Definiton: “co-ownership” is the ownership of the same propriety, jointly and at the same time by several people. Unlimited liability. Rights and duties. Essential components of their agreement
“Comunidad de bienes” and “coownership”: Differences. Different types of participants: USA: co-owner, co-tenant and joint tenant Spain: comuneros Different aims: USA: housing, mortgage Spain: enterprise Different taxes
“Sociedad colectiva” and “Partnership”: Similarities. At least two members are required. Every partner has the same responsability and liability, unless it is provided otherwise. Partners are selected. Similar process of creation.
“Sociedad colectiva” and “Partnership”: Differences Liability: USA: according to section 201 of the Revised Uniform Partnership Act (RUPA) of 1994 “a partnership entity distinct from its partners” Constitution: Spain: public deed in the Companies Registration Office. Participation and management.
“Sociedad en comandita simple” and “Limited partnership”: Similarities. Two kinds of partners: Spain – Colectivos ( management, representation and profits) + Comanditarios ( profits ). USA – General ( management, representation and profits) + Limited (profits). Creation process: written agreement
“Sociedad en comandita simple” and “Limited partnership”: Differences. Liability. Creation process: Spain: presence of a notary.
“Sociedad en comandita por acciones” and “Partnership limited by shares”: Similarities. Composition: General partner + Limited partner. Capital divided in shares. They follow the S. A. Law (according to the Boe, nº 161, section 3 “Las sociedades comanditarias por acciones se regirán por las normas específicamente aplicables a este tipo social y, en lo que no esté en ellas previsto, por lo establecido en esta ley para las sociedades anónimas. ” )/ Corporation Law.
“Sociedad en comandita por acciones” and “Partnership limited by shares”: Differences. Liability: Spain: a “colectivo” shareholder has unlimited liability, according to BOE, nº 161, section 1 “En la sociedad comanditaria por acciones, el capital, que estará dividido en acciones, se integrará por las aportaciones de todos los socios, uno de los cuales, al menos, responderá personalmente de las deudas sociales como socio colectivo. ”
LIMITED LIABILITY COMPANY (LLC) Hybrid business entity: has characteristics of both a corporation and a partnership. Allows a person to operate their business without putting at risk their personal assets.
LIMITED LIABILITY COMPANY (LLC) Incorporated association. Limited liability (responsabilidad limitada) Availability of pass-through income taxation. More flexible than a corporation. Does not have shares (acciones), but holdings (participaciones).
LIMITED LIABILITY COMPANY (LLC) Combination of corporations and partnerships: High level of potential limitation of liability to protect personal assets (from corporation). Very low formal requirements (from partnership).
LIMITED LIABILITY COMPANY (LLC) Main characteristic: Limited liability. Partners´responsibility is limited to the capital share they hold. Owners are not liable for the business debts. It does not imply complete protection from personal liabilities: in case of misrepresentation, Courts can pierce the corporate veil.
LIMITED LIABILITY COMPANY (LLC) State statutes typically provide automatic rules for how an LLC will be governed unless the operating agreement provide otherwise. Some variations: Professional Limited Liability Company (PLLC). Professional Corporations.
SOCIEDAD DE RESPONSABILIDAD LIMITADA (S. L. ) Autonomous legal entity. Must pay Company Tax (Impuesto de Sociedades). Their shares cannot be traded in the Stock Exchange (Mercado de valores). Registered in the Commercial Registry (Registro Mercantil).
SOCIEDAD DE RESPONSABILIDAD LIMITADA (S. L. ) Carácter capitalista. Uno o más socios (partners). Capital social superior a 3000 euros (registered capital). Participaciones (holdings). Impuesto de sociedades en un 32, 5% (Company Tax).
SOCIEDAD DE RESPONSABILIDAD LIMITADA (S. L. ) Órganos constitutivos: Órganos necesarios: Junta General de Accionistas. Administradores. Órganos facultativos: Órgano de Auditoría. Consejo de Vigilancia.
SOCIEDAD LIMITADA LABORAL Special type of LLC. (S. L. L. ) Created and governed as a LLC, with a few exceptions. Approximated equivalents: – Employee-owned limited company. – Worker-owned company. – Labour limited company.
SOCIEDAD LIMITADA LABORAL (S. L. L. ) The shares are held by: A) Workers (clase laboral). B) Those who do not work for the business (clase general). Workers who directly contribute their labor to the business must own at least 51% of the shares. Those who do not own shares must not work more than 15% of the total hours worked each year.
SOCIEDAD LIMITADA LABORAL (S. L. L. ) Differences with a LLC: Company Tax is reduced from 32, 5% to 25%. Before registering with the Commercial Registry, it must be registered at the Registro de Sociedades Laborales del Ministerio de Trabajo y Asuntos Sociales. According to its base entity type, the company’s name must include “Sociedad de Responsabilidad Limitada Laboral “(or S. L. L. ).
SOCIEDAD UNIPERSONAL DE RESPONSABILIDAD LIMITADA Special type of LLC. Different equivalents: – Sole trader company. – Sole shareholder company. – Single-member private limited company. – Single-member company.
SOCIEDAD UNIPERSONAL DE RESPONSABILIDAD LIMITADA Formed by only one member, or by two or more members if shares are property of only one of them. The single-member represents the General Meeting. The registered capital must be higher than 3000 euro.
Corporation USA More complex than partnerships or sole proprietorships. Maybe owned by just one person and have just one director and officer. Entity separate from its owners Unless some exceptions, the owners' personal assets are protected from creditors of the corporation.
Corporation USA The laws of its state of incorporation, treats a corporation as a legal "person" Until formally dissolved, a corporation has perpetual life State laws dissolution creation, organization and
Corporation USA 24 states follow the “Model Business Corporation Act” ABA (American Bar Association) Shareholders directors officers
Formalities of a corporation Hold annual shareholders' and directors' meetings Keep minutes of shareholders' and directors' major decisions Make sure that corporate officers and directors sign documents in the name of the corporation Maintain separate bank accounts from their owners Keep detailed financial records File a separate corporate income tax return.
Forming a corporation • • • Choose an available business name that complies with the state's corporation rules. Appoint the initial directors of the corporation. File formal paperwork, usually called "articles of incorporation, " and pay a filing fee that ranges from $100 to $800, depending on the state where the corporation is incorporated.
Forming a corporation Create corporate "bylaws, " which lay out the operating rules. Hold the first meeting of the board of directors. Issue stock certificates to the initial owners (shareholders) of the corporation. Obtain any licenses and permits that are required, depending on the state.
Taxation of a corporation C Corporations - Separately taxable entity - Unlimited shareholders - Non-US residents owners S Corporations - IRS form 2553 special tax status - Ownership restricted - No more than 100 shareholders - Just US resident owners
Sociedad anónima in Spain Big business One owner Limited liability Start-up capital Sociedad Anonima Unipersonal (S. A. U) 60. 000 € At least 25% must be paid up in the moment of the setting up
Sociedad anónima in Spain Personal assets or valuable economic rights may be invested. Since July 2010, the S. A is regulated by the Ley de sociedades de Capital The share capital is divided in shares invested by the owners.
Sociedad anónima in Spain Free transmission of shares Owners can sell their shares The corporation may enter into the Stock Exchange
Management of a S. A 2 governing bodies -Annual General meeting decisions ·Ordinary general meeting the year's activities, including financial dealings, are discussed ·Extraordinary general meeting
Management of a S. A -Board of directors: ·Internal management ·Represenation before third parties ·Balance sheet ·Profit and Loss statement ·Answer before shareholders.
Formation of the S. A Obtain a clear name search certificate from the Central Mercantile Registry. Execution by the future shareholders of an agreement of intent to set up the new company. Obtain a certificate of deposit of initial capital. Determination of the administration body.
Formation of the S. A Draft the S. A. 's bylaws. Sign the public deed of incorporation before a notary. File a tax return and pay transfer tax. Register the S. A. at the Mercantile Registry. Obtain a Definitive Tax Identification Number (CIF).
Taxation of the S. A Register for the tax on business activities (IAE) Register for value added tax purposes (VAT)
Sociedad anónima laboral Most of the shares belong to workers None of the owners may have more than a third of the shares. Most of the shares must be owned by indefinite term workers. The amount of hours of work of the workers who are not owners cannot be higher than a 15% compared to hours of workers with shares