The trading company: choosing the type of company adapted to your activity

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1. The commercial company: definition

THEArticle L210-1 of the Commercial Code defines a commercial company as one whose corporate purpose is the exercise of a commercial activity or one that has a commercial legal form.

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A commercial activity

Commercial companies are those that carry out commercial activities and make them their usual profession, for example in the fields of:

• Purchase-resale;

• Catering;

• The rental;

• Transport;

• Banking and financial activities.

What is a civil society?

Civil society carries out civil activity by nature: liberal, real estate or agricultural (SCI, SCEA). However, there are civil companies that carry out commercial activity. But this must remain secondary (a maximum of 10% of the total revenue) to avoid reclassification which would have an impact on the applicable legal regime.

Unlike civil companies subject to the rules of the Civil Code, commercial companies are governed by the Commercial Code. In particular, this has an impact on the principle of partners' liability, which is limited for a commercial company and unlimited for civil companies. The commercial company thus makes it possible to better protect the personal assets of the partners. Likewise, tax treatment differs depending on the type of company.

To know everything about the civil society !

A commercial form

The company can also be commercial by form, without the need to carry out a commercial activity. Thus, the nature of the activity carried out by the company has no impact on the commercial qualification of:

• Limited liability companies: SARL, EURL;

• Limited companies SA;

• Simplified joint stock companies: SAS or SASU;

• Limited partnerships (SCS);

• General partnerships (SNCs).

⚠️ There are also commercial companies so the activity is mainly civil, such as real estate companies. But be careful: if the commercial company has assets composed of more than half of assets or real estate rights, we speak of a preponderance real estate company (SPI). It is then subject to specific rules concerning capital gains or the sale of shares.

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2. Create a trading company

The creation of a company involves the combination of 3 elements:

• THEAffectio societatis, that is to say the willingness of the partners to collaborate for a common goal;
• Les Contributions by each partner to the share capital of the company: Cash contribution, contribution in kind and contribution in industry;
• The profit and loss sharing by the partners.

The trading company has the moral personality, which means that it can act on its own behalf, sign contracts in its own name and dispose of its own assets. To do this, it must be affiliated with the Trade and Companies Register (RCS) and be registered with the Business Formalities Center (CFE). She then gets a SIREN number and a Kbis extract. Only under this condition can she obtain the release of the share capital from the bank. The procedures can be done by paper or online on the site. Guichet-Entreprises.fr.

Commercial companies must also define their operating rules in written statutes. To do this, they can be accompanied by a lawyer, a jurist or a chartered accountant:

• A corporate name (name);

• A head office address;

• One share capital fixed or variable (assets specific to the company);

• Nature of the contributions;

• The identity of the partners;

• A social object (nature of the activity);

• A lifetime of existence.

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3. The different types of commercial companies

There are 3 main families of commercial companies:

• Capital companies: SA, SAS, SASU, SCA;

• Les partnerships in which the intuitive personae is essential: SNC;

• Joint companies that constitute a hybrid status between capital companies and partnerships: SARL, EURL.

There is no ideal form of commercial society. The choice of your status depends above all on the project, the amount of share capital, the number of partners and the responsibility they are ready to take on for their project.

The SARL, a limited liability company

An SARL is a commercial company whose organization and operation are governed by a well-defined legal framework:

• A minimum of 2 and a maximum of 100 partners;

• The approval clause in the articles of association makes it possible to validate the entry of a partner;

• A minimum contribution of €1 required to constitute the share capital;

• A company automatically taxed for corporation tax (IS).
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☝️ To note: It is possible to opt for income tax when the SARL is less than 5 years old, has a turnover of less than 10 million euros and is 50% owned by natural persons.

☝️ To note: The status of the manager varies depending on whether he is a majority manager (affiliated to the TNS regime for self-employed workers) or a minority manager (assimilated to the employee regime).

The EURL, a one-person company with limited liability

The EURL is the unipersonal form of the SARL. It therefore has its main characteristics except that:

• It is composed of a single partner;

• It is automatically imposed on the IR, with the possibility of an option at the IS.

☝️ To note: IR taxation allows the single partner to deduct losses on his tax return.

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☝️ To note: If the sole shareholder is the manager of the EURL, he is subject to the social regime for a self-employed worker. On the other hand, it is assimilated to the employee when the manager is a third party.

SAS, simplified joint stock company

As opposed to an SARL, a SAS is a capital company. It benefits from statutory flexibility with:

• No limit on the number of partners with a minimum of 2;

• A minimum contribution of €1 to constitute the initial capital;

• An automatic taxation of corporation tax, but a possible option for income tax;

• Social protection for the CEO, directly affiliated to the protective regime for assimilated employees.

SASU, a simplified single-person joint stock company

Single-member version of the simplified joint stock company, the SASU has a single president, who is also affiliated to the scheme for assimilated employees. Like SAS, it thus offers a fairly flexible legal status.

The SA, a public limited company

The SA is a structure adapted to large companies with:

• A minimum share capital of €37,000;

• Management provided by the President and a Board of Directors;

• A participation and responsibility of the partners in line with their contributions.

SCS, a simple limited partnership

The SCS is composed of at least two partners: a general partner and a sponsor. Limited partners only meet social debts up to the extent of their contributions and do not have the status of merchant.

SNC, a general partnership

SNC is a genuine partnership in which the partners are jointly and severally liable.

Have you found the legal form of a company adapted to your activity and your objectives? Don't forget to complete the formalities essential to creation of your business:

- Drafting the statutes of your commercial company;

- Deposit of share capital with all contributions;

- Publication of legal announcements in a newspaper;

- Registration with the RCS, trade and companies register.

To find out more about these essential steps, consult Axiocap !