SOCIAL CAPITAL INCREASE, FOR THE VARIABLE STOCK COMPANIES. FOR THE AGREEMENTS TO TAKE EFFECT FOR THIRD PARTIES, THEY SHOULD BE DONE VIA EXTRAORDINARY ASSEMBLY AND MUST BE LEGALIZED AT A NOTARY PUBLIC.- In order for agreements of capital increase to take effect for third parties, they must be agree in an extraordinary assembly minute and legalized at a notary public, in accordance with articles 182, first paragraph, section III; and 194 of the General Law of Mercantile Companies, without being correct when dealing with mercantile companies with variable stock, through the by-laws, there is a distinction between the variable stock increases to agree that these were can be conducted via ordinary assembly, different from the increases of the fixed capital stock, where it is agreed that the correct assembly is an extraordinary assembly; given that, when a company is incorporated as a mercantile company with variable stock, that circumstance does not cause the need to consider that the agreements for increasing or decreasing the social capital, having a variable feature, it can be made via ordinary assembly; because from further analysis of articles 213 and 216 from the General Law of Mercantile Companies, contained in the Chapter VIII Of the Companies of Variable Capital, which, the first of them states that: “in the companies of variable stock the social capital is susceptible to be increased by future contributions from the shareholders or from the admission of new shareholders, and decreases by a partial or total withdraw of the contributions, without more formalities than the ones mentioned in this chapter” and the second states that; “The act of incorporation of all variable stock companies, should include, in addition to the corresponding provisions of the nature of the company, the terms for the increases and withdraw of the social capital;” this regulates only one legal precept as an element of the company and what is deemed social capital, even though this is variable, from said reason, reaching the conclusion that the agreements for the increases of the social capital of variable stock companies, also have to fulfill with the requirements established by the law, which, in article 182, section III, it is established that the increases or decreases the social capital, should be executed through an extraordinary assembly, and whose minutes should be protocolized and registered in the public registry in terms of article 194, last paragraph, from the previously mentioned law; therefore, the capital increase agreement done in an ordinary assembly, will not be legally valid against third parties when it does not comply with the formalities established in the law, and those contributions made by shareholders, cannot be considered a capital increase, but debt owed by the plaintiff, because they are future increases of the social capital, in terms of article 48 of the Income Tax Law.
Administrative Proceeding Num. 79/11-02-01-6- Solved by the Regional Chamber of the Northeast II Federal Court of Administrative Justice, in May 2, 2012, by unanimity of votes.- Reporting Judge: Carlos Miguel Moreno Encias.- Secretary: María Teresa del Socorro Sujo Nava.
F.C.A.J.J form the Seventh Era. Year III. No. February 19, 2013. Pg. 532