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 The creation of a Real Civil Company (S.C.I) presents a certain number of advantages and does not require any minimum capital. Any person or entity can be associated in a S.C.I in France. Most usually used will be the S.C.I with fixed assets “ The company is instituted by two or several people, who agree by a contract, to assign to a joint undertaking, goods or their industry, in order to share the benefit or to benefit from the economy which will be able to result from it. (...) The associates commit themselves contributing to the losses ”.
A second provision specifies, concerning the specific statute of the civil companies, the precise character of these last (art 1845 of the Civil code): “… Are civil, all the companies to which the law does not allot another character at a rate of their form, of their nature, or their object ”.
The Real Civil company (S.C.I). The S.C.I is thus governed by the Civil code, more particularly, by articles 1845 to 1870-1. Article 1832 of the Civil code defines the S.C.I as a contract and must be the object obligatorily, of a writing. This contract can be formed only if the parts gave their assent, physically able to express their desires, which excludes any person whose mental faculties are faded. Can thus engage, any person having the capacity to do it, i.e.:
• the major one
• the major one under safeguard of justice
• the major one in trusteeship assisted of its curator
• the major one under trusteeship with the assistance of its tutor
• the minor émancipé directly or by marriage for the woman
• the minor not émancipé, but with the assistance of its legal representative authorized by the judge In addition, one can create a S.C.I between husband, without no reserve (article 1832-1 of the Civil code), even if they employ only goods of the community for the contributions at a company, or for the acquisition of social shares the spouse must simply be informed of it and this mention must appear in the act of the contributions.
Two husbands alone, or other people, can be associated in the same S.C.I and to take part together or not, with social management. The advantages and liberalities resulting from a deed of partnership between husband cannot be cancelled because they would constitute disguised donations, when the conditions were regulated by it by an act authenticates (notary) Lastly, a legal entity (company, company) can belong to one S.C.I in the condition which it has a legal personality. Thus a joint venture (S.E.P) or a company in fact, as such, cannot be associated a Real Civil Company. Objet of the société A S.C.I must obligatorily have a civil activity, other than any commercial activity.
It is made up to buy and have real goods. The S.C.I cannot for example, to buy an apartment to resell it (on a purely regular basis), it would be a commercial act. On the other hand, nothing forbids the company to resell its real estate (without causing a trade of it). It cannot furnish this apartment either in order to “rent it with of furnished” (it can on the other hand, to rent it vacuum). There is however a legal easy way to circumvent the resale: the Real Civil Company can buy a ground there to build a building, and to resell it thereafter. The operation of resale makes it possible to escape the exercise from a commercial activity.
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The management of the S.C.I
To put an end A a certain laxism, the law n°78-9 of January 4, 1978 organized the operation of the Real Civil Company. There are thus two bodies of management: management on the one hand, and the assembly of associated on the other hand.
• Management the
Compan is managed by one or more people (no maximum), who they is associated or not with creation, with indication in the statutes or by a distinct act (verbal lawsuit), or indicated by a decision of the associates brought together in assembly. Except contrary decision of the statutes, the associates present at this assembly must represent at least more half of the social shares. A legal entity (company, company) can be named managing company. Its leaders are then subjected to the same conditions and obligations that if they were managers in their proper name, without damage of the responsibility interdependent of the S.C.I. They incur the same civil and penal liabilities.
• The tax and social situation of (or of) managing
1 - the manager is not associated From a tax point of view, the manager if it is not associated, will be taxable with the income tax, and the versed wages will be a deductible load for the company. Socially, it will profit from common de jure system of the employees since there will exist between the company and him, a bond of subordination. On the other hand, if the manager (associate or not) is not paid, there is no social contribution to pay (the services of the URSSAF confirmed this point with our drafting). 2 - The manager is associated His tax system is that of a paid associate (see further, on this subject, the chapter concerning “the social and tax status of a associate”). On the social standing, it will be fixed with the mode of the non wage-earning persons (as the individual contractors) if it is in a majority. Essential to know… That it is civil or not, the creation of a company gives rise to a legal personality different from that of each member who makes it up. It is said that a company is a legal entity. As we saw, article 1835 of the civil code precise that “the statutes must be established in writing. They determine, in addition to the contributions of each associate, the form, the object, name, the registered office, the capital, the duration of the company and the methods of its operation”. We will study each one of these points in this chapter.
• The associates
To create a S.C.I, it is necessary to be at least two people. There is no maximum envisaged by the law. There is no condition of quality, nor of necessary nationality to be associated. Can be associated, of the physical people with people morals, or, people morals sets, or, people physical only. Attention, as for any legal structure, a associate “figurehead”, i.e., not having any will to work in a common objective and not lending that its name to supplement a list of associates, can be seen continued in the event of infringements or of bad management. But especially, the company can be the subject of an action for annulment for these same reasons.
• Lasted of the company the
Maximum duration of a company in France, is 99 years. However, it can be shorter. No minimal duration is imposed by the texts! The winding-up of the company does not intervene obligatorily at the date fixed in the statutes. It can, indeed, be curtailed or extended by the assembly of the associates.
• The social object the
Social object is the activity defined by the associates. We point out that it is interdict to exploit a commercial activity. The purpose of the object will be thus to realize savings or benefit (cashing of rents, for example).
• The authorized capital the
Law does not fix any minima amount for the capital of the real civil companies (S.C.I), nor the face value of the social shares. These last must be of equal value, of an amount freely decided by the whole of the founder members. This capital can be made up by cash subscriptions, contributions in kind (properties tangible, movable and/or real) or in industry (working time devoted to the company, relations of the contributor, its technical training, etc…), or, by the three at the same time. We disadvise the contributions in industry however to you: those do not contribute to the formation of the capital and often pose problems, during the distribution of the benefit. In theory, it is possible to assemble a S.C.I without any minimum capital (example, with 10€)
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 The capital can be variable the
L.231-1 articles with L. 231-8 of the Commercial law, concerning the variable capital is applicable to the S.C.I. It is enough to release 20% of the capital (obligatorily in cash), so that the company is validly made up. See article HERE on the S.A.R.L with variable capital.
The 80% remainder can be released within 5 year (to visit the site: Let us take an example practises the amount of the capital of the S.C.I is of 3.000€. One will be able to form the company by releasing 600€. The remaining 2.400€ could be brought (in cash) progressively by the associates, over one 5 years period.
It will be noted that this variable form presents a certain number of advantages, in particular, at the time of the departure or the arrival of new associates: there is not has to remake nor to deposit the modifications of statutes (and a saving in 228€) each time! A simple verbal lawsuit is enough. It does not give place has publicity, therefore, not either obligatory legal advertisement. Another subtlety: only the associates founders continue to be reproduced on the statutes. What can allow an access to the company for people not wishing to let trail their name and addresses everywhere…
• The registered office
It is the address of the residence of the company. This one can be a commercial room, a shop, an office for which you will contract a commercial lease of three, six or nine years (or 24 months a precarious lease). The formation of the company…
• The deposit of the file the
File including/understanding two specimens of the statutes, the required parts and the printed paper form of declaration (standard MO) must be deposited in the Center of the Formalities of Companies (C.F.E). This last will deal with all the social and tax inscriptions. If you do not know the address of the C.F.E of which you depend, address you to the town hall of your commune, the Room Commercial and Industry, the Guild chamber, or more simply, by seeking it in the telephone directory, on Internet, or minitel.
• The tax incidences of associated
Except for those which are subjected there by their object, the real civil companies are not liable to the corporation tax. As do it the individual contractors (without however comparing the two statutes), the benefit boxed by each associate will enter the total income of this last. To the annual declaration, they will be related as land incomes for the physical people, and like trading profits, if it is about a company associated with the S.C.I. It is advisable to announce two characteristics. On the one hand, in the case or /les associated are paid, and on the other hand, when a residential building is placed at the free disposal of a associate. 1°- wages of the associated ones: If the associate is paid S.C.I, the wages are not deductible from the benefit as loads. Indeed, the tax authorities consider that it is about a dist
ribution of the social benefit. Consequently, the perceived wages will be imposed for the associate, like benefit. It will be the same for any advantage in kind, except for a building put on a purely free basis, at the disposal of the associate. 2° - Residential building placed at the free disposal of a associate: If a associate with the free pleasure of a residential building belonging to the S.C.I, the administration does not consider that it is about a good in kind, nor of an assessed income for the associate, since there is not hiring between the two parts.
The tax authorities consider that the S.C.I with the pleasure of the building, and that it is not taxable by the provision free towards one of its members. Apart from major repairss which are deduced normally from the loads (heat insulation, rough-casting, major repairss, interests of loan…), the other loads are not deductible from the benefit. Particular rules are observed. To know the last applications of them, one will approach the tax services (article 156.1-3° of the Code general of the taxes).
• The associates “in family”
Two cases of figure can be considered: the situation of the husbands during the marriage, the situation in the event of divorce and what become the shares of a associate who dies.
1°- the situation of the associated husbands during the marriage. The use of goods which belong to them personally, (clean goods) in the mode of community. Under the mode of separation of goods or participation in the acquisitions, the husbands do not encounter any particular problem.
On the other hand, it can be of it differently when the husbands use the common goods as contributions so certain points were not respected. The statute of the husbands in company is subjected to articles 1832-1 and 1832-2 of the Civil code resulting from the laws n° 85-596 of July 10, 1982 and n° 85-1372 of December 23, 1985. Article 1832-1 authorizes of the husbands to join, even if they employ only goods of community for the contributions or the acquisition of social shares.
Two husbands alone, or other people can be associated in the same company, and to take part together or not, with its social management. Subparagraph 2 of the same article indicates as “the advantages and liberalities resulting from a deed of partnership between husband cannot be cancelled, because they would constitute disguised donations when the conditions were regulated by it by a notarial act” (i.e., in front of notary). A husband cannot employ common goods to make a contribution at a company, without its spouse being informed by it, and without it being justified by it in the act. The laized spouse will be able to ask the judge, the cancellation of the act of contribution. There is thus obligation to inform the spouse.
It is the husband who makes the contribution which will have the quality of associate. However, if the spouse of the contributor notified at the company of his intention to be personally associated, the quality of associated will be recognized to him for half of the shares subscribed to the condition which this intention was expressed at the time of the contribution, approval or acceptance. If this notification is posterior with the contribution or acquisition, the clauses of approval laid down to this end by the statutes, are opposable to the spouse. At the time of the deliberation on approval, the associated husband does not take part in the vote and its shares are not taken into account, for the calculation of the quorum and the majority.
2°- the situation in the event of divorce. Several cases can arise, according to whether the husbands or are not associated, or that they are common goods or not. If the contributions come from clean goods, the husband will preserve the value of this contribution in his personal inheritance, and the spouse will not be able to in no case, to claim anything (even in the absence of the declaration of re-employment envisaged by article 1434 of the Civil code).
If the husbands are both associated, and that the contributions were made by goods common to equal share, each one takes again simply its contributions, without possible litigation, since they are associated 50/50. However, since they are common goods, the shares will be mentioned in the state pertaining to liquidation of community (at the moment of the divorce) and will be subjected to the collection of the duties of division. On the other hand, if only one of the husbands is associated, this last will have, being the common goods, to pour half of the value of the shares at the day of the division. There also, there will be collection of the duties to the division.
3°- What does it occur T if a associate dies? When a associate dies, the civil company is not dissolved. It continues to function with the heirs or the legatees. However, it can be envisaged in the statutes, that they must be approved by the associates. The statutes can as provide as with dead one of the associates, the company will continue with only the associated survivors, or will be dissolved.
The statutes can also adopt other measures in this case. For example, that the company will continue with the spouse surviving, or, with one or more of the heirs, or even, with any other person designated by the statutes, finally, by testamentary provision.
If in consequence of the refusal of approval by the surviving associates, the heirs or legatees do not become associated with the S.C.I, the latter will have the right to receive only the value of the social shares of the late one. Responsibility and imposition
• the responsibility for associated
With regard to the thirds, the associates answer indefinitely of the social debts proportion of their share in the authorized capital, the date of the current liability or the day of the suspension of the payments. The associate who made only one contribution in industry, is responsible as that whose participation in the authorized capital is weakest.
• Accountancy
It is essential to establish an accountancy. However, two cases are to specify according to if you choose the imposition of S.C.I for the corporation tax (I.S) or for income tax (I.R). 1°- Imposition on the companies. The countable assessment will be obligatorily, at the end of each exercise, deposited with the Commercial court (as have the obligation the commercial companies).
The company will be imposed on the benefit, at the rate in force (15% in 2005). 2°- Imposition on the income. It is not obligatory to deposit accountancy with the Commercial court if one made the choice of the imposition on the incomes. As saw we it higher, if there are benefit, each associate will be imposed individually for the share which he received
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