oneFrom a risk perspective
According to Article 3 of the Company Law, a company is an enterprise legal person, has independent legal person property, and enjoys the property rights of a legal person.
oneIf the investment is made in the investment mode, the funds become the property of the legal person, and the shareholders who invest the funds no longer directly have the ownership of the funds, but can only indirectly own them through equity.
(b).If the investment is made in the form of a loan, the funds are still personal property and not the property of legal persons. Different from the uncertainty of shareholder dividends, it is natural to repay debts. The shareholders who have invested the funds can claim repayment at any time after the end of the loan period and have direct ownership of the funds.
So,If the company is at risk of repayment, as the property of a legal person, it must give priority to the liabilities of other creditors, and the final remaining property will be vested in the shareholders
If the funds are invested in the borrowing mode, even if there is a risk of debt repayment, the creditors are generally equal to each other, so the risk is much smaller.
2. Analysis from the perspective of fund recovery
(1) If the investment is made in the investment mode, the paid-in capital is formed, and the shareholders cannot withdraw the capital contribution after the paid-in capital contribution, and cannot recover it at will in the future. If it is necessary to recover the investment, there are only two means: one is to reduce the capital, and the other is to transfer the equity. Whether it is a capital reduction or a transfer of equity, it is relatively complicated, and if there is income, it may also be tax-related.
Under the current legal framework of our country, it is required to comply with the principle of corporate capital maintenance. If the company wants to reduce its capital, it must comply with the legal procedures in accordance with the relevant provisions of the Company Law. For example:
1.According to Article 43 of the Company Law, resolutions of the shareholders' meeting to amend the articles of association, increase or decrease the registered capital, as well as resolutions to merge, divide, dissolve or change the form of the company must be passed by shareholders representing more than two-thirds of the voting rights.
However, if the company reduces its capital in a targeted manner, only the capital contribution of some shareholders will be reduced, and the capital contribution of other shareholders will remain unchanged, and the company's equity structure will change, and the proportion of liability of other shareholders who have not reduced their capital will increase.
[Case].
Company A has a registered capital of 10 million yuan, Zhang San's capital contribution is 3 million yuan, and the company's external debt is 9 million yuan.
If the company's shareholders' meeting resolves to reduce Zhang San's capital contribution to 1 million yuan, then the company's registered capital becomes 8 million yuan.
The company could have repaid all the debts and left 1 million yuan, but it could not be fully repaid due to the targeted capital reduction. Zhang San only needs to bear responsibility for the company's debts within the scope of 1 million yuan of capital contribution, but other shareholders need to bear responsibility within the scope of 7 million yuan of capital contribution, and there is not a penny left, and the legal liability of shareholders who have not reduced their capital is increased.
Therefore,For targeted capital reduction, it is related to the interests of shareholders who have not reduced their capital, and such proposals should be voted on with the unanimous consent of all shareholders.
2.In this case, Zhang San's targeted capital reduction also harmed the legitimate rights and interests of creditors.
According to Article 177 of the Company Law, when a company needs to reduce its registered capital, it must prepare a balance sheet and a list of assets. The company shall notify creditors within 10 days from the date of making the resolution to reduce the registered capital, and make an announcement in the newspaper within 30 days. Within 30 days from the date of receipt of the notice, and within 45 days from the date of announcement if the creditor has not received the notice, the creditor has the right to require the company to repay the debts or provide corresponding guarantees.
(2) If the investment is in the form of borrowing, it is a liability. In the future, the company's abundant funds can be recovered at any time, which is simpler than the procedures for capital reduction and equity transfer, and can be operated at any time as needed.
For this reason, companies tend to prefer shareholders to invest in the form of "borrowing" rather than "investing", but this in turn leads to "thin capitalization".
3. Analysis from a tax perspective
(1) If the investment is made in an investment mode, the way to obtain returns in the future is dividends and equity transfer income.
Both require individual shareholders to pay 20% personal income tax, and the company pays the time withholding and payment.
(2) If the investment is in the borrowing mode, the way to obtain returns in the future is interest income.
Individuals who obtain interest income not only need to pay 20% personal income tax, but also need to pay 3%, which is currently reduced to 1% value-added tax, and can be deducted before income tax when the tax authorities enter the account with the invoice.
Fourth, from the perspective of capital structure
(1) If it is an investment model, the formation of owner's equity in the capital structure is conducive to the reduction of the asset-liability ratio and the optimization of the capital structure.
(2) If it is invested in the borrowing mode, it will form liabilities in the capital structure, which will increase the company's asset-liability ratio.
capitalChanges in this structure are important in some special cases. Some industries have paid-up capital requirements. The asset-liability ratio caused by borrowing is high, and it is easy to leave the impression that the company's solvency is low and its ability to resist risks is weak, which may have an impact on bank loans or bidding.