Stammeinlage: Delving into capital contributions of the GmbH in Germany

Contents

• What is Stammeinlage? 
• Stammeinlage vs. Stammkapital?
• How does Stammeinlage work? 
• How can I ensure my Stammeinlage is a cash contribution?
• How can I increase my contribution? 
• What happens in Austria? 

What is Stammeinlage?

A Stammeinlage is nothing other than the share capital (Stammkapital) contributed by a specific shareholder (Gesellschafter). The Stammeinlage amount does not have to be the same for all shareholders; it can vary. So for a GmbH (the German limited liability company) with two shareholders, the GmbH share capital must consist of two separate Stammeinlagen.

In the English-speaking world, the Stammeinlage equivalent is “capital contribution” in the USA. In the UK, however, Stammeinlage doesn’t have a direct equivalent and would probably be referred to as a shareholder’s share capital or the monetary value of the shares that a shareholder holds.

The word Stammeinlage directly translates into English as “original deposit” or “initial investment”.

Stammeinlage vs. Stammkapital: What’s the difference?

The terms Stammkapital and Stammeinlage often cause confusion for founders and are easily confused and often equated. The difference is quite simple: The Stammkapital includes the entire liability capital (Haftungskapital) of a limited liability company, whereas Stammeinlage refers to the share of each individual shareholder in a GmbH.

When a GmbH is formed, each shareholder can take over several shares. Each share has a principal amount that expresses its value. In such a case, the sum of the nominal amounts of all shares of a shareholder is then his or her capital contribution. If you add all the capital investments of the shareholders, you have the Stammkapital.

How does Stammeinlage work?

The respective share of a shareholder in a GmbH is called a Stammeinlage. This can also consist of several business shares (Geschäftsanteilen).

Which ways can a shareholder make share capital contributions when forming a GmbH?

There are three ways for a shareholder to contribute to the GmbH: The asset in kind (Sacheinlage), the cash contribution (Bareinlage) and the mixed asset contribution (Mischeinlage).

Sacheinlage: contributions in kind

If the contribution of a shareholder is made as an asset in kind, it must be immediately paid in full. However, the paying of an asset in kind into the share capital is only possible if the articles of association (Satzung) of the GmbH contain a corresponding regulation. Both the amount and each asset in kind must be explicitly stated in it.

Assets in kind may be, for example:

• • • Plots of land (Grundstücke)
    • Vehicles (Fahrzeuge)
    • Machines (Maschinen)
    • Shares in external companies (Beteiligungen an Fremdunternehmen)
    • Licenses (Nutzungsrechte)
    • License rights (Lizenzrechte)
    • Or claims against third parties (Ggf. Forderungen gegenüber Dritten)

It’s not always easy to determine the value of a specific contribution in kind for the GmbH. Shareholders are required to prepare a valuation report (Sachgründungsbericht) detailing the circumstances relevant to the calculation of the amount of the deposits. The decisive factor here is always the value specified in the articles of association (Satzung).

Stammeinlage of the GmbH: The special case of the hidden contribution in kind

A hidden contribution in kind is a special case. It’s considered a hidden contribution in kind if a deposit declared as a cash contribution is actually made as an asset in kind. Legally, such a provision of a cash contribution before the GmbH legal reforms was still interpreted as unpaid and was to be paid in full in addition as a cash contribution.

The legal situation is now somewhat less strict: At the time of entry in the commercial register (Handelsregister), the value of the asset in kind is credited to the outstanding contribution. However, the shareholder’s obligation to make the deposit as a cash contribution still applies. Such crediting is only possible if the actual value is proven by the shareholder.

Bareinlage: cash contributions

As soon as the articles of association (Satzung) are notarised, the company’s claim for payment takes effect. In the case of a formation with several partners, each partner must pay an amount of at least 25% of the sum of its capital contribution. In principle, the total amount of paid-in deposits must amount to € 12,500, which is half of the minimum share capital (Mindeststammkapital). This minimum amount is independent of the amount of the actual share capital of the GmbH.

The articles of association may set precise deadlines for unpaid cash contributions. Failure to comply with these deadlines obliges a shareholder to pay default interest. The outstanding € 12,500, which are still missing to reach the minimum share capital of € 25,000, doesn’t have to be provided, but should always be available, since the GmbH is responsible for at least € 25,000 for liabilities.

How can I ensure my Stammeinlage is a cash contribution?

Essentially, the following must be considered when depositing a cash contribution:

• • • The purpose of the transfer should be clearly identified.
    • The deposit must be made to the business account.
    • The management must have access to the contribution and be able to dispose of it.

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The mixed asset contribution or the cash contribution in kind

A contribution can also be “mixed” for a GmbH, i.e. partly as a cash contribution and partly as an asset in kind. For example, the required € 25,000 could be made with a truck worth € 10,000 as an asset in kind and € 15,000 as a cash contribution. For a UG (haftungsbeschränkt), the deposit can only be made in cash.

What are ‘ausstehende Einlagen’ (outstanding deposits)?

Outstanding deposits are deposits from the shareholders that have not yet been paid or have not yet been transferred to the GmbH. These may be cash, assets in kind or a mix of the two.

25% of each share of the business must be provided at the time of incorporation, with a total of at least € 12,500 in the sum of all shares. The remainder is referred to as “outstanding deposits” (ausstehende Einlagen) and the articles of association determine when they are due. Often, this requirement is made by a shareholders’ resolution. It should be noted here that in principle a simple majority of the shareholder votes is sufficient to achieve this. A default of the capital contributions by a shareholder may result in a procedure to forfeit shares (German article).

How can I increase my contribution as a GmbH shareholder?

For example, if you want to improve the credit rating or creditworthiness of your company, you can increase the capital contribution. Doing so sends a clear signal to business partners who may be doubting the creditworthiness of your company.

If you want to convert a UG (haftungsbeschränkt) into a GmbH, increasing capital contributions to at least € 25,000 is a mandatory part of the process.

To increase this capital, a resolution of the shareholders’ meeting and an associated amendment of the articles of association are necessary. However, the shareholders of a limited liability company do not increase their contribution, rather they create new business shares. These can then be done by either by existing or new shareholders. Each of these new capital contributions requires a notarised or certified takeover agreement (Übernahmevereinbarung).

Stammkapital & Stammeinlage for GmbHs in Austria

The GmbH legal form in Austria differs in many respects from the GmbH in Germany. When it comes to Stammkapital and Stammeinlage, be aware of the following:

The GmbH in Austria: Privileging of the minimum share capital

The minimum share capital must be €35,000. However, there is the option of setting a founding privilege (Gründungsprivilegierung) in the articles of association and reducing the minimum share capital to €10,000. This regulation is only possible in connection with a limitation of the regulation to a period of 10 years. Thereafter, the share capital must be increased to the originally stipulated sum of €35,000.

The GmbH in Austria: Special features in the performance of the Stammeinlage

In Austria, at least 25% must be paid up immediately for cash contributions of a limited liability company. All deposits paid in together (i.e. cash contributions and assets in kind) must total at least €17,500. If an entrepreneur claims Gründungsprivilegierung, the contribution must be paid as a cash contribution with a minimum amount of €5,000.

Stammkapital and Stammeinlage for GmbHs in Switzerland

As in Austria, the legal form GmbH also has special features and special regulations in Switzerland which deviate from German GmbH law.

The minimum share capital in Switzerland is 20,000 Swiss Francs (CHF), whereby the nominal value of a common share must be 100 CHF or more. The payment of assets in kind is allowed as a capital contribution.