Assignment of Shares
Assignment of shares is a process of transfer of shares through a contract of transfer to persons inside or outside the company, called transferees, a process by which the latter acquire the capacity of associates.
The assignment of social parts can be done between associates. In this case, it is necessary to draw up an assignment contract that will, however, have to be approved by the meeting of the associates.
Assignment of shares may also be made between an associate and a person outside the company, in which the transfer of shares is subject to the approval of the shareholders’ meeting by a decision adopted by a majority of at least three-quarters of the share capital. This decision shall be filed within 15 days at the Trade Registry in order to be mentioned in the register and published in the Official Gazette.
Divestiture of the shares may be made at their nominal value or higher than the nominal value, in which case the transferee must pay to the state a tax of 16% applied to the difference between the nominal value and the final value of the transaction.
The law of commercial companies mentions the obligation of the Trade Register Office to immediately transmit this decision to the National Agency for Fiscal Administration and to the general directorates of the county public finances and of the Bucharest Municipality.
In order to be enforceable, the transfer of shares must be recorded in the trade register and in the associate register of the company.
Law on companies provides for a remedy for the shareholders’ decision on the transfer of shares, supporting the possibility for the social creditors and any other injured parties to file a request for opposition requesting the court to oblige the company or associations to compensate for the damage caused and , if appropriate, the attribution of civil liability to the associate that intends to surrender its shares. The deadline for the submission of this opposition is 30 days, upon which expiration of the transfer of the shares will take place in the absence of such an opposition.
After the 30-day deadline for any interested party to appeal against the shareholders’ resolution on the transfer of shares, you will need the following documents:
- the application for registration in the trade register;
- proof of publication of the decision of the general meeting of the associates, publication of which is confirmed by the ONRC (National Trade Registry Office);
- the amending act of the constitutive act;
- the original constitutive act;
- the original assignment contract, unless the modifying act contains all the clauses relating to the rights and obligations of the transferors and transferees and has been signed by them;
- certified copies of the identity documents of natural persons and, where applicable, of the registration certificates of legal entities acquiring the status of associates;
- statements on own responsibility in the original by the new associates who by the assignment have acquired shares showing that they meet the legal conditions for the possession of these qualities;
- as the case may be, the authenticated declaration on its own account of the natural person foreign national in his own name or as a representative of the foreign legal person not registered in Romania, showing that he does not hold tax debts, in the original and, as the case may be, an authorized translator whose signature is legalized by a notary public for associates entering the company if the transmission of interest or shares is made to non-corporate persons;
- the original certificate or a copy of the register in which the foreign legal person is registered, attesting to its existence;
- if, according to the assignment acts, gains were obtained by the ceding natural person resident in Romania from the sale of shares/shares, gains determined as a positive difference between the selling price and the face value/purchase price, the payment documents of income tax;
- Evidence of payment of legal fees/fees.
Currently, there is a bill in the Senate proposing a stronger control over the transfer of social shares by setting up an inspection by the National Agency for Fiscal Administration in order to avoid further tax evasion.
In this respect, the transmission of at least 50% of the shares in the first year of establishment of a company will only be possible after an inspection by the specialized bodies of ANAF has been carried out within 30 days.
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