Why use a lawyer to create a company?

Apart from choosing the appropriate legal form, we carry out for you all the procedures for the creation of your company.

Why do you have to deal with a lawyer to create a company?

Seeking a lawyer to carry out the procedures for creating a company is important in order to:

• Benefit from a certain know-how: the corporate law lawyer relies on the in-depth knowledge of the business world that he acquired during his university career, especially in the area of taxation. Being supposed to master contractual matters, the lawyer anticipates the risks of certain clauses that could be void, disputes between partners and knows all the mandatory information that he must indicate in legal documents.
• Enjoy legal security: in the event of breaches of his duties towards his client, the lawyer incurs his professional civil liability. He must then ensure the effectiveness of the acts he writes for his client, provide his clients with all the relevant information so that they can make an informed choice and must not miss a period that would deprive his client of the possibility of exercising a possible remedy.

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But what are the dangers of not using a lawyer?

The non-use of a lawyer to create your company may lead to the omission of certain elements in the choice of legal form in particular. This is the case of the marital status of the business creator, which should not be overlooked. The lawyer will explain this question to you prior to the creation of the company.

The matrimonial regime of the creator of the company can in fact have a considerable impact on the company, the partners, or shareholders, his assets, but also on his spouse.

For example, in the case where a company manager is married under the community reduced to acquisitions regime, even if he manages completely independently, he will have to ask for the agreement of his spouse in several cases:

• When he wants to sell the business,
• When he wants to sell the building in which he works
• When he wants to assign property from the joint assets of the spouses to his sole proprietorship or to give it as collateral.

What are the various services offered by Fellous Avocats for the creation of a company?

Apart from choosing the appropriate legal form, we carry out for you all the procedures for the creation of your company:

• The drafting of the articles of association
• The deposit of share capital
• The registration of the company's articles of association at the departmental registration services (SDE)
• The publication of legal announcements in a newspaper (JAL)
• The registration of the company in the Trade and Companies Register
• The declaration of beneficial owners (DBE)

The drafting of the articles of incorporation for the creation of the company must be the result of extreme rigor; they are essential. In fact, the articles of association constitute the company's contract and make it possible to formalize the rules governing the relationships between the partners, but also the relationships between the company and third parties.

The adapted lawyer writes the articles of association in a precise manner, meeting the respective expectations of the partners. Using a standard status model could prove to be financially disastrous.

For example, it is strongly recommended to clarify in its statutes various rules that apply when certain events occur such as:

• The appointment or removal of leaders and the extent of their power
• Managing conflicts between partners or shareholders
• The death of a partner or manager
• The sale of shares or shares etc...

Founding partners of a company who have undertaken to make contributions of money to build up the share capital must deposit all or part of their contribution into a blocked account.. This capital deposit is made with a bank.

It is then the subject of a certificate of deposit of the funds necessary for the continuation of the creation formalities.

In the process of creating a company, and prior to its registration, a notice of incorporation of the company must be published with a Journal of legal announcements (BAD). This publication is mandatory.

The notice of publication must contain a certain amount of information about the company, under penalty of impossibility of registration and unenforceability against a third party (name, head office, share capital, company director, director of the company, duration, etc.). Following publication, the Journal of Legal Announcements issues a publication certificate that must be filed with the registration file with the registry of the commercial court in order to register the company in the Commercial and Companies Register (RCS).

An application form for registration with the Center for Business Formalities (CFE) on which the company depends or directly with the registry of Competent commercial court, that is to say that of the place of the company's head office must also be filed.

Once registered, the company obtains a SIREN number allowing it to be identified, a SIRET number and an APE activity code (main activity carried out) from INSEE as well as a Kbis extract which is a kind of” company identity card ” at the registry of the commercial court.

Business founders must also provide a document relating to the beneficial owner during the formalities of creating or modifying a business. In other words,”the natural person (s) who hold, directly or indirectly, more than 25% of the capital or voting rights of the company or exercise, by any other means, a power of control over the management, administration or management bodies of the company or over the general meeting of shareholders“must be entered in a beneficial ownership declaration form, which must be submitted when applying for registration at Business Formalities Center (CFE).

The non-declaration of these beneficial owners is a criminal offense that can be punishable by six months in prison and a fine of 7,500 euros.

The creation of a company requires, in fact, to choose its legal form, which will depend on the needs of the entrepreneur, each type and social form having distinct rules and objectives. As these two companies are the best known, the question that is often asked is the following: SAS or SARL, how to choose the status of your company?

This question is the subject of great hesitation on the part of business creators. To answer it, it is necessary to focus on the differences between the social regime of managers of SAS and SARL, their tax regime and dividends, the articles of association and the sale of shares or shares.

• La Drafting the statutes : when the SAS will benefit from greater freedom in its creation and its operating methods, the SARL is much more supervised. Indeed, the SARL will differ from the SAS by the fact that it has numerous provisions governing the statutes. The partners of a SARL can then be reassured because of these numerous provisions that frame the drafting of the statutes in the Commercial Code, while in the SAS the statutes are flexible, the partners are free to adapt them as they wish according to the specific needs of the company. Flexibility is then the key word in the statutes of the SAS, this must be clear for future business leaders.

• The tax regime : these two companies are subject to corporate tax. Exceptionally, they can derogate from it, under certain conditions and prefer income tax.

The transfer of shares or shares: this is an important point, especially with regard to approval and registration fees

As for the procedure for the transfer of a share, it is governed by a very strict formalism, in particular by a written act of transfer (authentic or under private signature). Moreover, the transfer cannot be effective without the approval of the other partners of the company (in partnerships, the person of the partner is a major consideration, this is what is called “intuitu personae”). Article L 223-14 of the Commercial Code:” shares in LLCs may only be transferred to third parties outside the company with the consent of the majority of the partners representing at least half of the shares, unless the articles of association provide for a greater majority ”. For LLCs, the transfer is registered by filing the act with the tax service. It is then up to the buyer to pay the registration fees, which amount to 3% of the sale price after applying a proportional reduction of 23,000 euros.

As far as the transfer of a share is concerned, unlike shares, they are in principle transferred without writing.. Indeed, article L 228-1 of the Commercial Code provides that” the transfer of ownership results from the registration of the securities in the purchaser's account ”. In other words, the enforceability against the company and third parties is the subject of a registration of the shares in the securities account of the purchaser or the donee. In addition, no clause requiring the approval of other shareholders is necessary. On the other hand, the articles of association may provide for an approval clause to control the entry of a new shareholder.

Finally, the transfer is registered with the tax service by filing a 2759 declaration. The registration fee is 0.1% of the selling price.

• The Social regime of the manager : The president of SAS is subject to the general social security regime. Thus, he must bear the same social security contributions as employees (except unemployment contributions if he is the majority manager) and these are based on his remuneration alone. If no remuneration is allocated to him, no minimum contribution will have to be paid by the company, unlike the TNS manager.

SAS is the right formula when you create a business and the SAS manager (and his associates) will not be paid for the first few years: the expenses are zero.

If the minority manager of a SARL is also subject to the general regime, the majority manager is assimilated to a self-employed person (TNS), such as individual entrepreneurs. He will therefore be affiliated to the social security regime for the self-employed (RSI) and the base of his social security contributions will consist of his remuneration and the share of dividends exceeding 10% of the share capital, the amounts paid into the partner's current account and the emission bonuses. It can be seen that the social regime of the manager is a decisive criterion for choosing the form of his company. Thus, while the RSI allows you to benefit from lower contribution rates, the majority manager is less well protected (especially in terms of retirement) and dividends are partially taken into account in the calculation of social security contributions. The president of SAS generally pays more contributions but has better protection. Moreover, its dividends are not charged.