The distribution of profits is not only an economic issue, but also a legal one. The Capital Companies Act imposes clear conditions that are often unknown to shareholders. This circular summarizes the essentials to avoid problems at the meeting.
The distribution of dividends is one of the most sensitive issues in corporate life. Although it may seem a simple procedure after the approval of the annual accounts, the Capital Companies Act (LSC) establishes strict limits and conditions that can lead to disagreements between partners. With this circular we would like to provide you with a clear view of the current regulations and the most frequent situations that must be considered before agreeing to the distribution of profits.
1.When can a dividend be distributed?
The applicable regulations are based on the principle of prudence and protection of corporate assets. Article 273 LSC establishes that dividends may only be distributed if:
- The fiscal year has been closed with profits, and
- The net equity after the distribution is not less than the share capital.
Attention. Even if there are profits in the current year, dividends may not be distributed if there are accumulated losses from previous years that reduce the net equity to be below the share capital. In such a case, the profits must be used to offset these losses.
In addition, the company must have previously endowed the legal reserve up to 20% of the share capital (art. 274 LSC) and other statutory or mandatory reserves, if any.
2.How are dividends distributed?
The distribution is mainly regulated by the company’s bylaws. In the absence of an agreement:
- In a Limited Liability Company (SL), it is distributed in proportion to the participation in the capital stock (art. 275 LSC).
- In a Sociedad Anónima (SA), in proportion to the paid-up capital of the ordinary shares (art. 276 LSC).
Special statutory clauses. The bylaws may provide for exceptions such as:
- Apportionment by heads (equal shares, regardless of the percentage of capital).
- Privileged shares with the right to a preferential dividend.
3.How and when is the dividend paid?
- The place and form of payment is established by the shareholders’ meeting. In the absence of a resolution, the dividend is paid at the registered office as from the day following the resolution (art. 276 LSC).
- The maximum period for payment is 12 months from the date of the meeting.
4. Risks of an incorrect distribution
The undue distribution of dividends may give rise to their restitution (art. 278 LSC), with the corresponding legal interest, if it is proven that:
- The distribution violated the legal limits, and
- The shareholder who received them knew of the illegality or reasonably should have known of it.
5. The right of separation of the partner
Pursuant to Article 348 bis LSC, a partner of an SL or SA can separate from the company if:
- The company has been registered in the Commercial Registry for at least 5 years.
- The meeting does not approve the distribution of at least 25% of the distributable profits of the previous year.
- The company has made profits during the three previous fiscal years.
- In the last five fiscal years, at least 25% of the accumulated distributable profits have not been distributed.
Example
A company has made €213,000 profit in five years and has only distributed €40,000. If in the most recent fiscal year it is not approved to distribute at least €13,250 more, any partner may request its separation, with the right to receive the fair value of its shares, which will be determined by an independent expert if there is no agreement.
6. Special situations: dividends and usufruct
In the case of usufruct of shares, the usufructuary is entitled to receive dividends, unless the articles of association provide otherwise (art. 127 LSC). The bare owner maintains all other rights (voting, attendance at meetings, etc.).
7. Can I demand a dividend if there are reserves?
No. If in a fiscal year there are accounting losses, it is not possible to demand the distribution of dividends with charge to reserves, although these exist. In addition, reserves must be available:
- Reserves must be available (without statutory, legal or pending R&D related obligations).
- If the shareholder did not challenge at the time the agreement that allocated previous profits to reserves, he cannot demand their distribution at a later date.
Neither can he/she exercise the right of separation, since this refers to the profit of the previous year, not to old reserves.
8. Can the right of separation be avoided?
Yes. The LSC allows this right to be suppressed or limited in the bylaws, provided that:
- The amendment to the bylaws is approved unanimously (art. 348 bis.2 LSC).
- Alternative formulas for distribution or compensation are agreed.
The distribution of dividends must be planned legally and economically, not only based on accounting results. A bad distribution can provoke the obligation to return dividends, generate conflicts between partners, and even lead to the separation and exit of dissatisfied partners. We recommend you review the dividend policy of your company and, if appropriate, adapt the bylaws to your current needs.
We remain at your disposal to advise you in the review and adaptation of the bylaws, as well as on the decision making at the general meeting.
For further information, please consult with Tax consulting
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