CTM00516 - Introductory: meaning of ordinary share capital: share capital: foreign registered companies: particular issues

Certificates

To take an example, a Limited Liability Company (LLC) organised under the law of a US state may issue transferrable interests analogous to shares in share capital but these will not necessarily be evidenced by a certificate of interest (see US Revised Uniform Limited Liability Company Act, Section 502(d)).  If there are no certificates, this is not necessarily fatal to the conclusion that the members’ interests are analogous to shares in ordinary share capital, provided (as would be expected to be the case) that the interests are clearly defined and recognisable as equity (ownership) interests in the entity.

No nominal capital

Since the 1960s there has been an international move away from the “capital maintenance” approach still central to UK company law.  Some US jurisdictions, the California Corporations Code for example, dispense with the concept of nominal capital and others, for example Delaware, allow the issue of shares with nil nominal value.  A similar approach has been adopted in a number of other jurisdictions.  Such shares may be referred to as “zero par” shares or simply “zeroes”.

An adaptable and pragmatic approach is adopted when dealing with overseas company law which does not straightforwardly align with that of the UK (although UK tax and company law are distinct, aspects of UK Corporation Tax law are unmistakably based on the company law capital maintenance principle, for example the distributions code at CTA10/PART23, see CTM00511).

Where there is no nominal capital requirement under overseas law, an amount on the facts subscribed as fixed capital analogous to share premium over nil nominal value shares will be treated as share capital by analogy with CTA10/S1025 (2) for the purposes of determining repayment of share capital.

Continental (civil law) “partnerships” with share capital

Such an institution as a French société en commandite par actions may often be translated as a “limited partnership with a share capital” into English.  The word “société” is in fact indeterminate and cannot be definitively translated as company or partnership for the purposes of UK tax law, but the share capital aspect reflects its nature as a société de capitaux  (in civil law generally, Latin intuitu pecuniae – compare the reference to intuitu personae at CTM00515).  This is consistent with the classification of a French SCA as opaque at INTM180030.

See CTM00511 for an introduction to the topic of ordinary share capital.