One of the choices for the SARL will be the SAS: it is distinguished from the SARL, particularly because of the status of the manager associated with this type of structure, but this is not the only distinctive element. What are the different elements when setting up a SAS or a SASU?
SAS Or SASU: Legal Aspects
It’s A Company…!
Like the SARL, the simplified joint stock company (SAS) is a company that requires that you make a capital contribution, draw up statutes, respect governance rules, etc.
At Least One Partner
A SAS can comprise one or more partners (if the company has only one partner, it will be a single-member simplified joint stock company – SASU). Each partner will have to contribute to determine the amount of capital of the company; it is specified that there is no imposed minimum (you can, therefore, in theory, constitute an SAS with a capital of one euro, although this is not recommended: it is, in fact, essential, for the credibility of your project, that the amount of capital is fixed in correlation with its economic needs and requirements).
Your liability as a partner will be limited to the amount of your capital contribution; that is to say, the company’s creditors will not be able to come after you to pay your debts beyond what you have brought to society. That being said, in practice, it is not uncommon for your liability to be “extended”: the banker, in particular, may ask you for personal guarantees in the event of recourse to a loan to finance your activity. Beyond this financial responsibility, be aware that associated managers may also be held civilly or criminally liable in the event of proven management errors.
AG By Videoconference
Since April 1, 2018, it has been possible to hold an AGM by videoconference, provided that the statutes allow it. If this is the case, the laws must also give a right of opposition to the partners.
SAS Or SASU: Regarding The Operation
As with any company, drafting the statutes is essential in creating the SAS. Although it is similar to a public limited company because it is an emanation of it, it is distinguished by the freedom left to you: the organization and its functioning come under the statutes, that is to say, your sole will and that of the other partners.
Beyond the classic information (company name, address of the head office, corporate purpose, amount and distribution of share capital, etc.), these statutes will set the terms of organization and governance, the terms of convening general meetings of partners (ordinary and extraordinary), the quorum rules for admission of votes, the terms of transfers and transmissions of shares (such as the approval or withdrawal procedure), etc.
Decisions Of The Partners
The partners must be consulted and invited to express their opinion on decisions relating to capital (increase, reduction, depreciation), restructuring operations (merger, split, partial contribution of assets, transformation, dissolution), the appointment of auditors, the approval of the annual accounts, the allocation of profits, the examination of agreements concluded between the company and the managers and partners, the modification of the statutes.
Appoint An Auditor?
You will not be obliged to appoint an auditor unless your company exceeds, at the end of a financial year, two of the following three thresholds: €4 million in balance sheet total, €8 million excluding tax in turnover, and an average number of 50 permanent employees employed during the financial year.
For Corporate Groups
For information, companies that control other companies must appoint an auditor if the group exceeds 2 of the three thresholds above. Likewise, a subsidiary company will be required to select an auditor if it is said to be “significant,” i.e., it meets the following criteria: 25 employees, €2 million in balance sheet total, €4 million € of turnover.
Focus On SASU
If you create an SASU of which you are the sole shareholder and president, measures to simplify the company’s operation are planned. Not only is it up to you, in principle, to unilaterally take the decisions usually devolved to partners, but also:
- You will be exempt from drawing up a management report if the company does not exceed, at the end of the financial year, two of the following three thresholds: average number of employees during the financial year equal to 50, turnover excluding tax of €12 million, balance sheet total of €6 million;
- The submission, within six months of the end of the financial year, to the trade and companies register of the inventory and duly signed annual accounts constitutes approval of the accounts.
The SAS is known for the freedom given to partners in determining the rules that will govern its operation. If this is an asset because it allows you to set up a “tailor-made” company, this will require great vigilance, particularly rigorous drafting of the statutes. It is always advisable to call on specialist advice in this field to draft the company’s regulations, in particular, to validate the content of the statutes and the drafting of the clauses retained and because you must, in any case, respect the public order rules of company law, from which you cannot deviate.
SAS Or SASU: Tax Aspects
In principle, an SAS or SASU is subject to corporate tax (at the rate of 31%, 25%, or 15%, under certain conditions, depending on the company’s size and the profit made). The tax is, therefore, calculated at the company level and paid by it based on the taxable income declared. If the company notices a deficit, it is retained by it and charged to the profits of subsequent financial years (without a time limit) or can, optionally, be carried forward to the earnings of the previous financial year (we speak of “carry.” -back”).
…or Income Tax, Optionally And Under Certain Conditions
As soon as your SAS is less than five years old, you can opt to have it subject to income tax, but only for a maximum period of 5 financial years pro, video that it meets the following conditions:
- at least 50% of it must be held by individuals, with 34% of the shares having to be held by the manager(s) (and, possibly, the members of their tax household);
- it must employ fewer than 50 employees and achieve a turnover excluding taxes or have a balance sheet total of less than €10 million.
SAS Or SASU: As Far As You Are Concerned…
On The Social Plan
In all cases, your status will be that of an “equated employee.” You will benefit from the social security and employee retirement system, except for unemployment insurance, which will not apply to you.
On The Tax Front
Your remuneration will be subject to income tax according to conditions applied to salaries and wages (remuneration deductible, tax-deductible, from the company’s results if it is subject to IS). But be careful: if you opt for the SAS or SASU to pay income tax, your taxation will evolve as follows: the profit from the activity (or the deficit), calculated at the company level, is yours.
You will, therefore, be personally liable for tax on this tax result in the income category corresponding to the company’s activity, whether or not you deduct this profit (the deductions that you may make during the financial year are not allowed as a tax deduction from the company’s profits).
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