Les PME suisses signent souvent un pacte d’actionnaires sans l’articuler correctement avec leurs statuts et leurs assemblées générales. Résultat : conflits, blocages de décisions et risques de responsabilité des organes.
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La réforme récente du droit des sociétés en Suisse apporte plusieurs changements significatifs pour les PME familiales. Ces modifications visent à améliorer la flexibilité de la gestion et à renforcer la transparence, tout en tenant compte des besoins spécifiques des entreprises familiales.
Parmi les principales évolutions, on note la possibilité d’organiser des assemblées générales virtuelles, une plus grande liberté pour adapter les statuts et une meilleure protection des actionnaires minoritaires. Ces nouveautés facilitent la prise de décision et permettent une gouvernance plus moderne.
Pour les entreprises familiales, il est essentiel de revoir les statuts et règlements internes afin de profiter des nouvelles possibilités offertes par la loi. Une mise à jour adaptée garantit une meilleure transmission de l’entreprise entre générations et évite des conflits entre héritiers ou associés. En conclusion, cette réforme représente une opportunité de moderniser la gouvernance des PME familiales et de préparer l’avenir en alignant les structures internes avec les standards juridiques actuels.
Les assemblées générales sont un élément central de la gouvernance des sociétés suisses. Depuis la récente réforme du droit des sociétés, de nouvelles règles offrent plus de flexibilité aux entreprises et visent à renforcer la participation des actionnaires.
Les changements notables incluent la possibilité d’organiser des assemblées générales virtuelles, sous certaines conditions techniques garantissant la transparence et l’égalité de traitement. Les délais de convocation et les modalités de vote ont également été modernisés, permettant un recours accru aux moyens électroniques et à la communication numérique.
Pour les dirigeants et les conseils d’administration, ces évolutions nécessitent une mise à jour des statuts et des règlements internes afin d’éviter toute contestation. Les entreprises doivent aussi s’assurer que leurs systèmes informatiques sont suffisamment sécurisés pour protéger les données des actionnaires et garantir la validité juridique des décisions.
En conclusion, ces nouvelles règles offrent une opportunité de moderniser la gouvernance et d’impliquer davantage les actionnaires, tout en exigeant une vigilance accrue sur la conformité et la cybersécurité.
As part of the “Major Company Law Revision” Swiss limited companies, as well as corporations, have the opportunity to introduce a so-called capital band into their articles of association (art. 653s-653v CO).
So what are the possibilities the new capital band will bring to the table?
The capital band gives authority to the Board of Directors of a limited company to gather for a general meeting in order to pass a decision to raise or decrease the ordinary capital share registered in the commercial register. This can be done for a period of five years at most, within a bandwidth of up to 50% (meaning the capital share could be raised up to 150% or decreased down to 50% from the initial amount).
Conditions and limitations of the capital band
In order to pass a decision at a Board of Directors’ general meeting about the capital band, a qualified majority is required, pursuant to article 704 paragraph 1 no. 5 of the Swiss Code of Obligations (A resolution by the general meeting requires at least two-thirds of the voting rights represented and an absolute majority of the nominal value of shares).
In all cases, the Board of Directors cannot decrease the capital share below CHF 100,000, which is the legal minimum for Ltd.
Also, the raise or decrease of capital share is allowed for a period of a maximum of five years.
If a company’s article of association provides a capital band with the option to decrease the capital share, such a company is obliged to have its annual financial statements audited on a limited basis. It is no longer possible to waiver the limited audit for purposes of creditor protection. Companies with capital bands that only allow the Board of Directors to increase the share capital, still have the right to waiver the limited audit.
Rules for combining the capital band with existing capitals
The existing share capital retains validity until expiration but can’t coexist with the capital band. However, when a capital band is in place, the existing authorized share capital has to be revoked.
Conditional share capital is a different situation. When a capital band is introduced, two options are possible, it can remain valid together with the capital band, or become an integral part of it.
In cases where the general meeting passes an ordinary increase or decrease of the capital share, or the currency of the capital share is changed for the period of the capital band’s existence, then the article of association has to be amended accordingly.
Taxation of the capital band
The tax assessment of the capital band (especially with respect to stamp duty and the repayment of capital contributions reserves) is only carried out at the end of its term after a net assessment of any increases and reductions.
A new requirement for the notes to the annual financial statements is that all capital increases and decreases made by the board of directors within the capital band should be included unless this information can already be derived from the balance sheet or income statement (article 959c paragraph 2 no. 14 Swiss Code of Obligations).
Foreign investors can find an attractive business environment in Switzerland. The government encourages foreign investment through economic policies and laws such as comparably lower taxes and an extensive network of trade treaties to circumvent double tax schemes with European nations and other countries globally.
Switzerland has easy access to the European market through its dynamic innovation, political and monetary stability, and central position in Europe. Switzerland has clear and straightforward regulations with a friendly regulatory and tax environment.
Swiss companies hold a dominant position in the services field, especially in private banking and insurance. Insurance is a complete and profitable market in Switzerland. The Swiss insurance system is robust, allowing for a range of products and prices. 21% of the average Swiss citizen’s budget goes to insurance- a higher percentage than in other countries.
Most noteworthy is that Swiss insurance companies make more than half their income abroad. Switzerland is the leading European exporter of insurance.
It is mandatory to sign health insurance (unless you are an international official, diplomat, or family member). 90% of basic medical services and hospital expenses are covered by mandatory medical insurance. Visitors spending longer than 3 months in Switzerland must arrange health insurance within their first 90 days.
There are also circumstances in which someone not living in Switzerland must get Swiss insurance. Included in this are EU and EFTA citizens who benefit exclusively from a pension in Switzerland and live in the EU, Iceland, or Norway (this applies to family members who are unemployed as well). This also applies to Swiss citizens living in Iceland, Norway, or the European Community.
Travel insurance can be basic (including illness, accidents, or sports injuries) to extensive (including loss, theft, luggage damage, abroad departure cancellation, and airline bankruptcy).
Switzerland is also part of the European health insurance equivalence program. This means if you are on a temporary journey to a member country, you get urgent treatment as if you were a local.
Life insurances cover disability and death risks and can stand in as a provision for old age. There is a difference between individual insurance and collective insurance. The former is a private pension, while the latter is an occupational pension. Employers or pension funds will often provide it as a benefit.
Building and fire insurance is the building owner’s responsibility and is compulsory.
Personal property insurance includes insurance against fire, flood, and other major disasters. The insured amount depends on people living together and the number of rooms. Each insurance company has its own recommendations dependent on these criteria.
Basic third-party cover insurance covers damage to third parties caused by the insured vehicle. It is mandatory and regulated by law. This covers physical and material damage and loss of income after an injury. It also protects the insured’s legal interests in the event of unmeritorious claims, covering expert and legal fees. There is also the option to add full insurance, comprehensive or semi-comprehensive, to cover damage to the insured car.
Steps to registering an insurance company in Switzerland:
Switzerland has a rich and vibrant insurance business. This business is far-reaching and conducive to growth on a global scale.
The new Swiss Company Law is coming into force on January the 1st 2023, and it will bring several novelties regarding capital loss, insolvency, and over-indebtedness.
Monitoring the solvency is mandatory. Companies need to monitor both, the liquidity, as well as the balance sheet regarding a possible loss of capital. The board of directors must act if their company is at risk of going bankrupt. Further measures must be taken if necessary to restructure the company, or such measures must be proposed to the general meeting of shareholders if they are within their jurisdiction.
Monitoring the liquidity continuously is important. The draft of the law, though, specifies that a liquidity plan is not required. Liquidity is not mandated to be monitored or analyzed beyond a specific timeframe in the law. There was a suggestion that a company should undergo an ordinary audit every six months or every twelve months in the case of companies that are required by law to do so. The suggested time interval should nevertheless serve as a guideline.
When a company has a capital deficit, a licensed auditor must conduct a limited audit of the last annual financial statements before the annual general meeting of shareholders approving them if there are no elected auditors in place. A board of directors needs to make sure the economic situation does not worsen than what has been presented to them. They must appoint a licensed auditor. The board of directors may waive this auditing requirement if it applies for a debt-restructuring moratorium.
The board of directors must as before, immediately prepare preliminary financial statements at going concern values and liquidation values if there is reasonable concern that the company’s liabilities are not covered by its assets, that is if the company is over-indebted. In practice, the interim financial statements at liquidation values can be waived as long as the ongoing concern assumption is made. In addition, the consolidated financial statements carrying concerned values do not show any overindebtedness.
A licensed auditor must be appointed by the board of directors to audit the interim financial statements unless the board elects auditors to do so.
The board of directors must inform the court, which will initiate bankruptcy proceedings if the company is over-indebted according to both interim financial statements.
There is no requirement for the court to be notified if creditors defer or subordinate their claims (including interest claims) to the extent of overindebtedness.
In connection with the bankruptcy process, it is now explicitly stated that the claims of creditors whose claims have been subordinated behind all other creditors are not to be included in the calculations of the company’s losses. By amending this provision, the Federal Supreme Court intends to correct its case law, which suggests that a bankrupt company’s board is responsible for subordinated claims.
The court notification may also be omitted in cases where there is a realistic prospect that the over-indebtedness can be repaid within a reasonable time, but no later than 90 days after the audited interim financial statements are available, and if there is no additional jeopardy to the claims of the creditors. In practice, the matter of notifying the court of bankruptcy is frequently raised, and this clarification is very welcome.
Basically, the company law must be adapted to the current economic climate. A number of provisions found to be impracticable under the current law will be amended or repealed, as well as shareholder and minority rights.
What will be the most important changes?
· Capital regulations will be more flexible
The share capital can be denominated in the following currencies: USD, EUR, GBP, or JPY if it is essential for the business activities of the company in that currency. It is acceptable for a share to have a nominal value less than 1 cent as long as it is greater than zero. In place of the authorized capital increase, the board of directors can increase or decrease the share capital within a range using a statutory instrument called the capital band, which is valid for a maximum of five years.
· Simplified general meeting process
The general meeting will be able to be held virtually or abroad. During the Corona pandemic, the COVID 19 Ordinance 2 introduced the possibility of holding virtual general meetings, while COVID 19 Ordinance 3 extended it until the new company law entered into force. Under the new company law, if a virtual general meeting is to remain possible, however, a statutory basis must be established and, in principle, an independent representative must be elected.
The Board of Directors may also vote electronically. Moreover, the list of resolutions that require a qualified majority by law for approval at a general meeting will be extended.
· New rules for treating insolvency and over-indebtedness
The law specifically requires the board of directors to monitor solvency and initiate restructuring measures in the event of imminent insolvency. If a company is over-indebted or has a corresponding concern, the board of directors must act. Now, it is clear under which circumstances the bankruptcy court notification can be omitted when the company is over-indebted.
Amending the Articles of Association
If the Federal Council has approved the proposed revision to the Commercial Register Ordinance, the articles of association can be amended in advance with the commercial register office. There must, however, be a clear statement in the articles of association that the new provisions will only apply when the new company law takes effect.
All other amendments required to comply with the revised constitution can also be passed this year, however, it can only be registered with the commercial register office once the revised constitution has taken effect. This amendment to the articles of association must be passed by the general meeting under the condition precedent that the new company law will enter into force. The amendment to articles of association can be registered with the commercial register office as soon as the new company law becomes effective.
Nevertheless, there is no requirement to amend the articles of association before the new company law enters into force. A period of two years will be given to companies to amend any provision of their articles of association that isn’t consistent with the new law.
It is mandatory for all legal entities-partnerships and corporations alike to keep books. Nevertheless, this principle is not without exceptions and special cases.
As of January 2015, every legal entity and sole proprietor in Switzerland is obliged to keep accounts, even the ones that are not registered. Sole proprietors who generate more than CHF 100,000 annual turnover are obliged to get registered in the commercial register. However, the ones that generate less than CHF 100,000 annual turnover are not released from the obligation to maintain records and accounts.
Simplified bookkeeping
Partnerships and sole proprietors who generate less than CHF 500,000 annual turnover are allowed to do simplified bookkeeping. This also includes those associations and foundations that are not required to register in the commercial register. Simplified bookkeeping means that the proprietor has to keep track of records of income and expenses in a way that makes it easy to read the net worth.
Types of companies who must do bookkeeping pursuant to the Swiss Code of Obligations
These are the types of companies that are obliged to keep in compliance with the rules of the Swiss Code of Obligations:
In order to maintain accounts, it is necessary to prepare an inventory, a comprehensive balance sheet, and a profit and loss account with the necessary supporting documents.
It is mandatory for companies to keep bookkeeping records and reports for a minimum of ten years, and special provisions apply to documents stored electronically.
Closing the financial year
A financial year in most laws, including in Swiss law, lasts from the 1st of January to the 31st of December. Sometimes, companies and proprietors are allowed to select different dates.
Newfound companies are allowed two options on how to end the financial year. One is to go for a short year ending, which means if the company was established on the 01st of July, the annual accounting closes on the 31st of December the same year. Another option is the long year-end which means that the company can choose to close the financial year at the end of next year. This means that the first financial year can last up to 18 months. However, the rules may vary in different canton laws.
Taking into account that the first financial year brings many expenses, most newfound companies and proprietors opt for the long year-end. This way, the high expenses that come with starting a company can be offset against the profits that will accumulate later on.
Corporations and limited liability companies may be liquidated at the shareholders’ meeting or the general meeting of shareholders, respectively. In the event of a liquidation, the commercial register should be informed of the decision and the appointment of the liquidator. The suffix “in liquidation” will be added to the company name in the registry. After then, the official gazette shall issue three notices to creditors asking for notification of their claims against the corporation.
Liquidators must end the company’s continuing operations and liquidate its assets. After liquidation, the firm should pay its debts using its remaining assets and cash. A bankruptcy filing is necessary when a company’s debt exceeds its ability to refinance.
Final balance sheets should be prepared after the end of the liquidation process. A final shareholders’ meeting will determine the payment of a liquidation dividend if the financial statements are approved (if any).
Liquidation dividends may only be paid out if the final call to the creditors was published in the official gazette for at least one year. Even after three months, distribution may only begin if an auditor certifies that doing so would not prejudice the interests of third parties.
A corporation may be de-registered or deleted from the commercial register when its last liquidation dividends have been paid out to its creditors.
The tax consequences of a company’s liquidation
After the liquidation process has begun, a company is still liable for taxes (i.e., after the registration of the liquidation with the commercial register). A liquidation firm can make profits during this period, either via commercial activity or the discovery of hidden reserves.
After the shareholders’ meeting has approved the final liquidation balance sheet, a liquidation dividend may be paid. As with regular dividends, Swiss withholding tax applies to the distribution of liquidation dividends. Liquidation dividends may be paid through the notification method if the firm is allowed. Withholding tax does not apply to the return of capital and reserves from capital contributions, on the other hand.
The de-registration or deletion request in the business register will be sent to the appropriate cantonal tax authority and the Swiss federal tax authority. Afterward, the federal tax authorities in Switzerland provide the final tax declaration forms and questionnaires to the business (VAT). The firm’s liquidators must pay all overdue taxes since they may be personally accountable for the payment of these taxes. Unpaid social security payments are also a source of personal responsibility.
Until the company is ultimately de-registered from the VAT register, VAT declarations should be made to the tax authorities. After each financial quarter, a business will de-register from the VAT register.
Only once the federal and cantonal tax authorities have certified that there are no outstanding tax obligations can the company be de-registered from the commercial register.
Liquidation of sole proprietorships and business partnerships
If a sole proprietorship (“Einzelunternehmen”), a simple partnership (“Einfache Gesellschaften”), a general partnership (“Kollektivgesellschaften”), or a limited partnership (“Kommanditgesellschaften”) ceases to do business, it must be dissolved. If any are leftover, excess funds may be awarded to partners after all obligations and contributions have been repaid. The firm must be de-registered if the partnership is included in the commercial register.
Liquidation of sole proprietorships and business partnerships has tax ramifications.
Single proprietorships and company partnerships carry out these self-employed operations. Self-employment income is taxed at the individual level by the partners or owners of the business. Ordinary income tax and social security payments apply to any gain realized in connection with the cessation of self-employment, such as discovering concealed reserves.
Liquidation profits from a sole proprietorship may be taxed more favorably if the proprietor retires at age 55 or becomes physically incapable of working. These circumstances, however, also need the payment of social security payments.
Instead of going through with a liquidation, a self-employed individual considering selling their company could choose to explore incorporating their company. It is possible to carry out such a change without incurring taxes. As a rule, the profit from the sale of shares in such a legal organization is not taxed, meaning it is not taxable income. However, the conversion into a legal company must be completed at least five years before the sale of the shares, which is a significant criterion.
The following article discusses tax incentives for Swiss holding companies, Swiss management companies, and Swiss subsidiary companies.
Corporate tax reliefs are offered to Swiss holding companies to avoid double taxation. The cantons have the responsibility to determine the criteria for obtaining the status of a Swiss holding company.
Here are some of the basic criteria that Swiss holding companies have to meet:
What are the tax incentives for holding companies in Switzerland?
Swiss holding companies are not obliged to pay income taxes to the Cantons and have reduced rates on the capital. Federal taxes are usually at a rate of 7.83 percent, however, the activities of holding companies are not subject to such taxation.
Here are some of the basic criteria that Swiss management companies have to meet:
In general, management activities involve management services such as financial or administration services, consulting, or technical assistance. Officially, management activities haven’t been defined on a federal level, and the task of defining them is left to the cantons.
What are the tax incentives for management companies in Switzerland?
Domestic income has a normal tax rate, but foreign income is taxed and evaluated based on the importance of the services performed in Switzerland. The level of importance is evaluated case by case by the canton’s administration. Foreign income is usually taxed from five to fifteen percent, and the rate of 7.83 percent of the total revenue is added to it.
Here are some of the basic criteria that Swiss subsidiary companies have to meet:
What are the tax incentives for subsidiary companies in Switzerland?
Domestic income has a normal tax rate, but foreign income is taxed and evaluated based on the importance of the services performed in Switzerland. The level of importance is evaluated case by case by the canton’s administration. Foreign income is usually taxed from five to twelve percent, and the rate of 7.83 percent of the total revenue is added to it.