Amicable liquidation procedure
Lawyer in Bastia, Lawyer in Corsica, Lawyer in judicial partition
The procedures for amicable liquidation and universal transfer of assets (TUP) are sometimes misused by fraudulent companies facing tax and social security reassessments, which they seek to evade.
To remedy this, the decree of 7 July 2024 makes it compulsory to publish the dissolution giving rise to a TUP procedure in the Bulletin officiel des annonces civiles et commerciales (BODACC) and the production of social and tax compliance certificates at the close of the amicable liquidation procedure.
The text therefore amends Article 8 of Decree no. 78-704 to make it compulsory to publish the dissolution giving rise to a TUP procedure only in the Official Journal of the European Union. BODACC and no longer in a legal gazette, to ensure that the procedure is more widely publicised and that creditors are better informed.
The text also modifies article 10 of the same decree as well as article R. 237-7 of the French Commercial Code (for commercial companies) to make it compulsory to produce a certificate of good standing with the company and a tax certificate showing that the accounts are up to date when the voluntary liquidation is closed, as part of this procedure, which takes place without the intervention of a judge.
Although the company must not have any debts and must have enough assets to pay all its liabilities, there is no obligation to certify this, which the decree corrects with this obligation.
These provisions will come into force on 1er October 2024.
What you also need to know (Amicable liquidation procedure) :
Decide to dissolve your company
Whatever the reason for your decision to cease trading, it must be taken by the partners or shareholders at an Extraordinary General Meeting (EGM).
At this meeting, you may decide, by a majority or unanimously, to dissolve your company.
The majority rules required for decisions taken at an EGM differ according to :
-the legal form of your company (SARLSAS, SA, etc.);
-the terms of the Articles of Association ;
-the date of incorporation of your company.
For SARLs, the majority rules differ if the company has been created :
-before
or after 4 August 2005 (date of entry into force of the law in favour of small and medium-sized enterprises).
As soon as the decision is taken, your company is officially in liquidation.
Appointing the liquidator
At the same EGM, the partners or shareholders appoint a liquidator.
This person will be responsible for managing the company during the liquidation period in your place. The decision to dissolve the company automatically means that you lose your management and representative functions. The EGM may, however, decide that you, as the company's manager, will be its liquidator.
However, this function may also be assigned to a partner or a person from outside the company. As long as they are not banned from managing and directing a company.
Once the liquidator has been chosen, the EGM can also set the terms of reference for the liquidator. In this way, you and the partners or shareholders can:
-Determine the duration of the assignment (which must be less than 3 years),
-. delimit its powers
-and set any remuneration.
If the EGM minutes do not specify the liquidator's powers, Article L. 237-24 of the French Commercial Code specifies that the liquidator "is vested with the broadest powers to realise the company's assets". In practical terms, the liquidator's task is to sell the company's assets in order to pay off creditors and to distribute any surplus (liquidation surplus) among the shareholders, in proportion to their shares in the company's capital.
Note: it is possible to appoint several liquidators, but this may slow down the liquidation process. More than one liquidator is recommended when the company has several establishments or structures.
Carry out publication and registration formalities
Once appointed, the liquidator must inform public bodies and anyone outside your company of your decision to cease trading.
To do this, it must :
-. Inform the Service des Impôts des Entreprises (SIE) of your company's registered office of the decision to dissolve.
-. Publish the notice of dissolution in a Journal d'Annonces Légales (JAL), making sure to include certain mandatory information, such as the company's name, legal form, SIREN number and the identity of the liquidator.
-. Send the dissolution file to the Centre de Formalités des Entreprises (CFE) on which your company depends (CCI, CMA, etc.) or directly to the commercial court registry. This file must include
- minutes of dissolution ;
- certificate of publication in the JAL ;
- the completed and signed Cerfa M2 form;
- a sworn statement that the liquidator has no criminal record;
- a cheque for €195.39 made payable to the Registrar of the Commercial Court.
If the application is complete, notice of the dissolution of your company will be published in the Bulletin Officiel des Annonces Civiles et Commerciales (BODACC) and an amending entry will be made in the Registre du Commerce et des Sociétés (RCS) or the Répertoire des Métiers (RM).
Complete the liquidation process
The opening of the liquidation phase marks the beginning of the liquidator's work. As mentioned above, the liquidator's main task is to pay off the company's liabilities. In other words, the liquidator settles your company's debts by selling the equipment and buildings it owns.
To do this, the liquidator draws up a precise inventory of liabilities and assets. Care must be taken not to forget any claims, as the liquidator may be held personally liable by creditors whose claims have not been paid.
Throughout the liquidation process, the liquidator will keep you and all the partners or shareholders informed of the operations he undertakes. He must also report to you regularly on his activities and the company's financial situation. The partners or shareholders therefore continue to play an important role during the liquidation by monitoring the smooth running of the liquidation operations.
If the liquidator finds that the company's assets are insufficient to pay its creditors, your company has ceased payments. This situation means that an amicable liquidation procedure cannot be pursued, and that collective proceedings (receivership or compulsory liquidation) must be initiated. As the company's representative, the liquidator must therefore inform the clerk of the relevant commercial court, failing which he or she may be held liable.
Closing the voluntary liquidation
Once all the company's debts have been paid, the liquidator will convene you and all the partners or shareholders for a meeting. ordinary general meeting (AGO).
At this final general meeting, the liquidator will send you :
-its final report
-with the accounting documents showing its operations (profit and loss accounts, liquidation balance sheet, appendices, etc.).
The AGM approves the final accounts presented, notes the close of the liquidation and the end of the liquidator's term of office. For this vote, the majority requirements are those of an AGM. It is not an EGM, as is the case for the decision to dissolve the company.
A notice of liquidation must then be published in a legal gazette (JAL).
The winding-up minutes drawn up at the end of this AGM are sent to the CFE. This includes the Cerfa M4 form and proof of publication in a JAL.
If the application is completed correctly, you will receive a K-bis extract indicating that the company has been struck off the RCS or RM register. This marks the definitive end of your company and its disappearance as a legal entity.
Please note: If you do not agree with the liquidator's accounts, it is up to the court to decide.
Sharing any liquidation surplus
If, after the liquidation operations and the repayment of the contributions to the members or shareholders, there is any cash left over, this is known as a liquidation surplus. This is divided among the members or shareholders in proportion to their holding in the share capital, unless otherwise provided by the articles of association.
This liquidation bonus will be taxed in the same way as dividends.
The tax rate for the Prélèvement Forfaitaire Unique (PFU) or "flat-rate withholding tax" is the same as for the French tax system. Flat Tax "is 30%, with
-. 12.8% in respect of income tax
-and 17.2% for social security contributions.
However, you can opt to be taxed at the progressive income tax rate after a deduction of 40%.
Winding up your company is a final decision with far-reaching consequences. It requires compliance with a number of technical formalities.
To minimise the risk of errors and delays in the process, don't hesitate to enlist the help of professionals.
Lawyer in Bastia, Lawyer in Corsica, Lawyer in judicial partition
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