A frequent restructuring solution used by entrepreneurs is to contribute to the capital company in the form of an organised part of the enterprise (ZCP), comprising various assets such as fixed assets, intangible assets.
In order to effectively transfer all elements of the ZCP, including real estate, the shareholders of the company shall adopt a resolution on the increase in share capital and shall conclude in appropriate form a contract transferring the ownership of the ZCP to the company. The company then applies to register an increase in share capital in KRS.
The transfer of the claim is not closely related to the entry of an increased share capital by the registry court into the KRS. The use of acquired fixed assets or intangible assets may commence as soon as they are acquired by means of aport, regardless of when the share capital increase is registered in the KRS
Moment of transfer of an organised part of the company to a capital company
In connection with the above mentioned activities, entrepreneurs often wonder at what point in fact the contribution in kind is made to the increased share capital, i.e.
whether it is the date of conclusion of the contract transferring the ownership of ZCP to the company and the adoption of a resolution on the increase in share capital or the date of entry into the register of entrepreneurs of the increase in share capital.
In view of the view of the judicature, it must be concluded that the moment of the contribution in kind to the increased share capital is the moment when the transferor and the company conclude an agreement transferring its ownership and the date of the transfer indicated in the resolution on the increase in share capital.
The transfer of the aport is therefore not closely linked to the entry of an increased share capital by the registry court into the KRS. The use of acquired fixed assets or intangible assets may start as soon as they are acquired by aport, irrespective of when the share capital increase is registered in the KRS.
At this point, it should be stressed that what is different is to make a non-monetary contribution to the company in order to increase capital, and what is different is to increase the share capital, which has effects only with the moment of its entry in the register.
Despite the constitutional nature of the alert, a prior transfer of ownership is a prerequisite.
The process of increasing the share capital covers the formal side of the increase, including the legal activity of amending the articles of association, where such a change occurs and the actual activity of making contributions to the company for the increase in share capital.
Recording of fixed assets
With regard to the moment when the company should introduce the asset acquired by way of aport/intangible asset/intangible value to the fixed assets record and establish the initial value for depreciation purposes, it should be stated that the company has the right to introduce the asset acquired by means of aport/intangible and legal value into the fixed assets register on the date of acquisition, i.e. on the date of conclusion of the contract transferring the ownership of an organised part of the enterprise and to adopt a resolution on the increase in share capital rather than on the date of entry of the share capital increase in the business register.
Written by Maciej Tuszyński
Associate in the Legal Department. Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw. He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies. As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.