By Mya Finn
When thinking about how to set up a company everyone immediately thinks about the basic and bureaucratic procedures to follow. That is: first find founders, that is, a group of members who intend to participate in the project; then go to a notary and sign the statute and sign the articles of association therefore; finally register it with the Revenue Agency or other body in the area where the company will have its registered office.
After that, it will start operating and a company’s build cycle seems complete and so easy. In reality this is not the case and perhaps little or not enough is reflected on the type of company chosen. In fact, although the procedures may be equivalent and similar – more or less for all types of companies – there are some variations depending on the type of company that will be set up. And this is the aspect we want to insist on most. And it certainly remains the first real step to take when it comes to setting up a company. The starting point, even before finding the founding members.
The steps to start a company
Before moving on, however, to see what are all the types of companies that can be created, let’s see what are the steps for the establishment of a real company. First of all, it is necessary to set up a group of members who have a common purpose. These will meet and meet and decide the type of company to be founded. This, as we have already said several times, is not trivial since it can entail the variation in the bureaucratic times of realization and implementation of the company itself. And this shared purpose will result in the corporate purpose of the company itself.
The first real step that marks the beginning and the start of the process of founding a company is the so-called stipulation of the company contract, with a notary, in the presence of the notary himself and all the founding members themselves. The partnership agreement consists purely of two parts: that of the articles of association and the so-called company statute. The latter in particular is important because it contains all the dictates and rules that all members of society give themselves and which must be strictly and scrupulously followed; it also provides for the list of all the components and their respective offices.
The articles of association must always contain some mandatory information, some fixed and necessary fields, reporting fundamental elements inherent to the company, such as: the type, the name chosen for it, the place where it will have its registered office, and its share capital; besides, as we have already said, its object, that is the purpose for which it was born, which its founding members have set themselves. Therefore, the latter, may decide to be helped in its drafting by a notary, or by an accountant or a lawyer specialized and specialists in the matter, who may also know how to advise them best in case of need.
The articles of association will be more detailed for the capital company and less for partnerships. Finally, in the articles of association, of course, the general information of all the members must not be missing, with their personal data such as: name and surname, place and date of birth, domicile and citizenship.
At the signing of the articles of association, in the presence of the notary and all the founding partners (the so-called simultaneous constitution), the digital signature is also valid for the signing signature. This is more than sufficient for joint-stock companies, while for partnership also requires the registration of a private agreement authenticated by the notary. Upon arbitrary choice of the shareholders, they can go personally to the stipulation of the company contract, and therefore in person to sign, or they can decide to opt for a delegation, that is, to send their representative in their place with a power of attorney: it is the so-called representation voluntary.
Registration in the commercial register: special cases
After entering into the company agreement, it must be registered in the commercial register. In fact, for partnerships, the company was founded in all respects with the stipulation of the articles of association, but assumes legal value – and therefore begins to operate effectively – only after registration in the register of companies; while, in the case of limited companies, the company starts to arise only from the moment in which it is requested to be registered in the commercial register.
It should be noted that Private Limited Company Registration in the business register is not the only bureaucratic practice that sanctions the operability of the company. There are other procedures to follow: such as, for example, the opening of a VAT number; l ‘ membership Rea (the so-called Economic Administrative Index, otherwise the risk of incurring penalties); the presentation and sending of all the documentation relating (i.e. the document containing the applicant’s data, the subject of the communication and the summary of requests to the various entities), also electronically. Finally, it should be borne in mind that the maximum time limits for registering each deed of the company are around twenty days.
The preliminary partnership agreement: what it is
However, beyond this subsequent, conclusive phase with which the legal validity of the company contract itself is sanctioned, there is also another preliminary and optional one, so to speak. Or there may be the particular case in which there is also the drafting of a so – called preliminary company contract. What is it? What legal validity does it have? How does it differ from the traditional company contract just seen? First of all, it must be said that the elements and characteristics will be the same (such as the corporate object for example), just as the explanation of the company’s founding purpose cannot be missing.
Registration in the register of companies is important and absolutely central: just think that the registration number in the register of companies will coincide with that of the company’s tax code, with which it will begin to operate in all respects. Although without registration the company still exists, it would be irregular. Another peculiarity, then, is that there are two types of entry in the commercial register: entry with immediate start and the other, the so-called entry without immediate start. In the first case, the company’s registration is immediate and the active wording will be associated with it ; while in the second case it is the opposite and the company will be assigned the inactive acronym .
The types of companies
Having said that, it seems almost trivial to say it, but it must always be kept in mind, there are various types of society. The first point to make is that, by definition, a corporation is a sort of “collective enterprise” (and thus act as such) and can be formed from a single person (then it is called single-member ) or more subjects; but, in this regard, it must be added that these subjects can be both natural and legal persons. Furthermore, companies are usually non-profit, but this is not always the case. In addition, the main attention to be paid is not to confuse companies, associations, consortia and even unions: there is a huge difference between all these structures.
Then, when we talk about society, we need to distinguish if we consider the legal entity in itself [1] or in a broad sense and therefore rather refers to the legal relationship [2] . The main connotation that identifies the company in the first sense, is that the shareholders agree and form it to produce revenues, profits obtained from their business (therefore economic), which will then be shared among them. But, in addition to this profit-making purpose, which is the most common for companies, there are other types of purposes, which help to distinguish between companies, associations and consortia. In fact we see that there is also a mutuality purpose for cooperatives [3] and mutual insurance companies [4], obviously in the insurance field. Finally, there is also a consortium purpose for consortia [5] precisely.
If we said that the establishment of a company starts from the drafting of the statute and the signing of the articles of association, it is necessary to dwell for a moment on a particularly relevant aspect. By statute and in the articles of association, the corporate object must always be specified which, by law [6], must be determined, lawful and possible. In fact, this is not useless or trivial, on the contrary; it is fundamental because it refers to the aim that arises with the establishment of the company. And, if this objective is not then realized or implemented, it can even lead to the company itself being dissolved [7].
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In this regard, we reiterate that for a simple company the aim must not be commercial [8]. If, on the other hand – on the contrary – the aim will be commercial [9] , then we will speak – more likely – of companies in a collective name but this implies the financial liability of the shareholders themselves. And above all, you become subject to taxation.
Distinctions between the various companies
If the main distinction that can be made, between the various types of companies, is that between partnerships and joint stock companies , it is true that it does not always happen that the company is identified and identifiable, attributable to a specific type, but it can have characterized by different types of companies: we will have what are called atypical contracts , with related atypical subscription clauses, if we see the company as a consequence of a form of contract (or agreement) signed and entered into.
The main difference that exists between corporations and partnerships is that the former have legal personality , while the latter do not. Furthermore, there is a different ‘ economic responsibility ‘; in technical jargon we speak of patrimonial autonomy, or the distinction of a patrimony of each partner and subject from that of another.
In capital companies, in fact, there will be the so-called perfect patrimonial autonomy , while in that of persons what is called imperfect patrimonial autonomy . What does it mean? That in joint stock companies the shareholder is responsible for the share paid (in bonds or during the activity of director, for a general partner in the limited partnerships ); but the creditor cannot claim his personal assets. Conversely, in partnerships, each entity is also liable with its own assets, on which the other entity, towards which it is indebted, can retaliate in the event of ‘losses’.
