The following questions are those we are most frequently asked by clients who are setting up a new business. They may not answer the questions you have, but if not, just get in touch. Our experienced and friendly staff are here to help.
The short answer is 'No'. A business does not have to be a limited company. Someone setting up in business on their own has the choice of setting up as a self-employed person (a 'sole trader'), or of having a limited company. If there are two or more people involved in the business then they have the choice of trading as a partnership or of forming a limited company or a limited liability partnership (LLP). For further information see our company choice page.
A limited company is registered at Companies House. It must operate within the Companies Acts and is governed by its own articles of association. There are different types of limited company but they all have these things in common. Once registered, a company has corporate personality. It is a legal entity (or legal person) with its own rights and obligations, separate and distinct from those of its members. The company's property is its own and is not treated as belonging to the company's shareholders and directors. The company itself can enter into contracts, employ people, sue and be sued and can be liable if it commits criminal offences. When the company incurs debts, the company itself is liable for them and the directors and shareholders are not (see below).
There are different types of companies used for different purposes, but for a trading business the only real options are the private company limited by shares and the LLP.
The basis of limited liability is that all debts incurred by a company are the company's own liabilities and not directly the legal liability of the shareholders or of the directors. The company is a separate legal person from the shareholders and the directors. The company incurs debts in the course of its business and only the company is liable for those.
The shareholders' obligation is to pay the company for the shares they have taken in it. Once the shares are fully paid for (and this would usually be the case with a private limited company) no further money is payable by the shareholders. So, if two people set up a company and take, say, one £1 share in it each, their only liability as shareholders is to pay £1 each to the company for their shares.
The directors incur no personal liability as all their acts are undertaken as agents for the company. However, there are certain circumstances where liability may be imposed by the court, particularly in respect of wrongful or fraudulent trading.
At Incorporation Services Limited we register all our standard companies by electronic registration by arrangement with Companies House. This ensures the quickest possible registration time, usually within a few hours. It is also possible to register by sending forms and documents to Companies House. This has to be done for Community Interest Companies, as there is no electronic registration facility at Companies House, and is sometimes done in other, specialised circumstances.
These are covered on our separate company choice page.
See our company names page.
See our articles of association page.
Companies House is the government body responsible for registering companies in the UK. There are separate branches in Cardiff (for England and Wales), Scotland and Northern Ireland. We can register companies in all three. When a company is registered, documents and forms (and the registration fee) is sent to Companies House which, if everything is in order, will issue the company's certificate of incorporation. Most registrations are now done electronically.
On first registration
The information varies according whether the company is a private company limited by shares, public company (PLC), limited liability partnership (LLP), company limited by guarantee, property management company, or right to manage company.
Annual return
Each year the company must send its annual return to Companies House. The annual return is a standard form sent out by Companies House, which must be updated and returned with the registration fee. Most annual returns are now sent electronically, when the fee is £13. The annual return states much of the information currently on file at Companies House (registered office, directors, shareholders, industry classification).
Annual accounts
All limited companies also have to register their annual accounts. Bigger companies have to file full accounts comprising a balance sheet, profit and loss account, directors' report and auditors' report. Small and medium sized companies can send 'modified accounts', containing less detail. There are exemptions from audit for smaller companies.
Notification of changes
If the company does any of a long list of things, the right form must be sent to Companies House. Common examples are changes to the directors or company secretary, or the registered office, or when shares are allotted. Some of these changes are quite straightforward. In other cases they are more technical than people realise. All official forms are available from Companies House website, and many simpler matters can be registered electronically.
Public record
All information registered at Companies House is available for public inspection and registering this information is the price of being granted the privilege of corporate personality and limited liability. Part of our business is obtaining information about companies (doing a 'company search'), so if you need information about another company, let us know. Copies of forms and documents registered by every company at Companies House can be accessed from the Companies House website. Some information is free, in other cases a fee is payable.
All companies must maintain a set of statutory registers which are public documents and may be inspected by any member of the public. They must be kept at the registered office or some other address notified to Companies House. Most companies keep the statutory registers in a single bound book or loose-leaf binder, but they may be kept in any form, e.g. as a computer record. Our standard company formation package contains completed registers in a loose-leaf file with a slip case (a 'company kit'). In outline, the registers comprise:
The register of members shows the names and addresses of the shareholders and the number of shares held by each member. The register of members is an important public document and the main evidence of who the shareholders are and how many shares they own. It is very important to the shareholders of a company that they are registered in this statutory register to be able to assert their rights on their shares.
Although not strictly required, most companies also keep separate registers of share allotments and transfers.
The register of directors and secretaries records their names, addresses, etc.
The register of charges shows mortgages or charges on the company's property.
Most company's statutory registers also include a minute book (a company must keep minutes of all board and general meetings) and share certificates. Share certificates are the documents held by the shareholders to show that they own shares in the company and are important documents that must be kept safely.
Completing the statutory registers is one of the first tasks required of a new company, and part of our full company package (but not the cheaper 'basic' package). Once this work is done there are no further routine Companies Acts requirements until the first annual return has to be completed when the company is a year old.
Every company must have a registered office to which all communications and notices may be sent. It is part of the information required when registering a company (with the postcode). The address of the registered office must appear on all business letters, emails, websites, etc.
The registered office must be in the country in which the company is registered: a Scottish company may not have its registered office in England or vice versa. The same applies to Companies registered in Northern Ireland. There is, of course, nothing to stop a Scottish company having a place of business in England (or an English company having one in Scotland) etc., but it must maintain a registered office within the country of its registration.
The address may be changed from time to time, but Companies House must always be notified on the correct form or by web filing.
A company's objects are a statement of what the company is set up to do. before the Companies Act 2006 came fully into effect, all companies had a statement of objects in their memorandum of association. This has now been abolished as a requirement for companies registered from 1st. October 2009, so most companies registered from that date do not have a statement of objects. Companies that are charities or Community Interest Companies, and some other specialist companies, will still have an objects clause in their articles.
A company limited by shares must have a share capital divided into shares of a fixed amount (usually £1). Shares are issued to the owners of the company. To protect the creditors, share capital is locked into the company and can be returned to the shareholders only subject to strict rules. The shareholders own the company in proportion to the number of shares they hold.
A typical example might be that A, B and C set up a company and decide that they will each put in £10,000 as capital. The company would issue 10,000 £1 ordinary shares to each of the three shareholders. The company's issued share capital will be £30,000 divided into 30,000 shares of £1 each. Each shareholder owns one-third of the company, has one-third of the votes and is entitled to one-third of the profits (if any!).
The requirement for authorised share capital was abolished on 1st. October 2009.
Before that, when a company was set up the amount of the 'authorised' share capital had to be stated in the memorandum (which has also been abolished). The authorised capital was an upper limit to the amount of shares the company could issue. There was no requirement for the company to issue all its authorised capital and the figure has no implication for the liability of the members. Companies registered before 1st. October 2009 will still be restricted to the amount of authorised capital stated in their memorandum, but that can be removed by adopting new articles.
There is not a simple answer to this. It depends on the circumstances.
A company set up to run a business will usually have money (and perhaps other assets) put into it by the shareholders in return for shares.
Take the example above, where A, B and C set up a company and decide that they will each put in £10,000 as starting capital, and they each take 10,000 £1 shares. Putting all the money in as share capital is not the only way. An alternative would be for the three shareholders to take one share each and to lend the money to the company. In this case the company will have an issued share capital of £3, divided into three shares of £1 each.
In many cases, either solution would be appropriate. Either way, each shareholder is an equal one-third owner of the business. They have one-third of the votes each, will receive one-third of any dividends and are entitled to one-third of any net assets remaining if the company winds up. There are, however, striking legal, taxation and practical differences between the two approaches.
If the £30,000 is put is as share capital, it is effectively locked into the company and cannot easily be returned to the shareholders. Companies can buy back their shares but only in quite restricted circumstances and subject to quite strict procedures.
Money loaned to the company can be repaid to the lenders at any time. If the company fails, the shareholders, as lenders, may claim in the liquidation for the return of their money as creditors of the company. If the loans have been secured by the company issuing debentures to the three shareholder/directors, they may rank as secured creditors, which will put them in a more advantageous position than the ordinary creditors.
There may also be a tax advantage in putting the money in as loans. When the company starts to make money, the loans can be repaid without there being any tax payable by the lender on receiving the repayment. Further, interest may be paid to the lender whether or not the company has made profits.
For all these reasons, money put into a company as capital is often put in as loans rather than share capital.
There may, however, be good reasons for committing the money as share capital.
A company capitalised at £30,000 is clearly more substantial than one with a nominal £3 share capital. The amount of share capital appears on the public record at Companies House and it may be important to display the substance of the company to potential creditors and other business contacts. In some cases, banks or investors may want to see capital committed as share capital simply because it is then 'locked in'.
There may also be good reasons as between the three shareholders why they should want to see that the money committed by the others is in the form of share capital.
At a more sophisticated level, where substantial investment is being put into a company, the investors may well want a package of loans and shares, perhaps requiring different classes of shares to protect different aspects of their investment and to give them an appropriate package of rights in the company.
The decision as to the capitalisation of a substantial company should usually be taken only with appropriate legal and accountancy advice.
A company can create different classes of shares by giving them different rights. If a company has only one class of shares they will be ordinary shares and will carry equal rights. Because in recent years there have been tax advantages in companies paying profits out as dividends, many companies now have different classes of shares.
Different classes are typically created by varying the voting, dividend and capital rights attached to the shares. The rights attached to shares will usually be set out in the company's articles. This can be done when a company is first registered, or later, by passing resolutions to alter the articles.
At Incorporation Services Limited we have many years of experience of drafting company articles and can advise as to appropriate classes of shares to meet individual circumstances. Contact us if you want advice on this area. Company Law Solutions can create classes of shares for an existing company.
There is no statutory provision prohibiting a child from owning shares. In many family owned companies, shares are allotted to children as a means of providing them with capital assets which may be expected to increase in value as part of longer term inheritance and capital gains tax planning. Paying dividends on such shares can also be useful ways of using children's personal allowances for income tax (and can be useful when supporting older children through university, etc.) Professional advice should always be taken when using any such schemes.
As from 1st. October 2008 a child under 16 cannot be a director of a UK registered company.
A company has to have both shareholders and directors. The shareholders (also called 'members') own the company and the directors manage it. Unless the articles say so (which is very unusual) a director does not need to be a shareholder and a shareholder has no right to be a director.
The separation in law between directors and shareholders can sometimes be confusing. If two or three people set up a company together they will usually all be both directors and shareholders. The problem with this is that company law requires some decisions to be made by the directors and others to be made by the shareholders and, in either case, there are formalities to comply with. To complicate matters further, some decisions have to be made by the directors, but only with the shareholders' consent. Having said that, directors can make most decisions for the day to day running of the company, and only certain important decisions need to be authorised by the shareholders. Contact us for advice on any problem of this sort.
There is also a difference with regard to remuneration. Directors can be paid wages or salaries by the company for the work they do, just like any other employee. The shareholders, on the other hand, can receive a share of the profits the company makes by being paid a dividend. When the directors and the shareholders are the same people, they may receive some of their money as wages or salary (as directors) and some of it as dividends (as shareholders). There are tax differences between salaries and dividends which can make a substantial difference to the tax paid, so advice should be taken.
When it comes to voting, the usual arrangement is that each director has one vote (at a board meeting - a meeting of the directors), but the shareholders have one vote for each share they own. So a shareholder with lots of shares has lots of votes, but only at general meetings, i.e. meetings of the shareholders. Most decisions are made at board meetings, not general meetings.
This is a new term which came into effect on 1st. October 2009. Until that date, directors were required to state their usual residential addresses on the forms at Companies House. Now they may state a service address, which may be the company's registered office or some other address where they may be contacted. A director must still notify Companies House of his or her residential address, but this is not put on the public record, though it will be available to public authorities and credit reference agencies. So, when registering a company, the director must state both their service address and their usual residential address (though they may be the same address.
In outline, the process is for the new company to be registered and then for the sole trader's or partnership business to be sold to the company at an appropriate value, the consideration for which is the issue of shares in the company. There are many legal, taxation and practical considerations to take into account and your accountant's advice is essential
A typical process would be the following. An existing partnership business worth, say, £30,000 is to be incorporated. The company is registered and a date chosen for the new company to take over the business. There are three partners and they own the business as equal partners.
A contract is drawn up between the partners (as vendors) and the company (as purchaser), under which the partners sell the business assets to the company for £30,000, to be paid by the company issuing 30,000 £1 ordinary shares to the partners. As they own the business equally, they get 10,000 shares each.
From the company's point of view, this will be an allotment of shares for non-cash assets, and care must be taken to ensure that all the company law procedures are complied with. We can prepare a contract of transfer and the documentation to allot the shares.Company Law Solutions provides services for incorporating a sole trader's business and a partnership business.
A ready-made company is one that has already been registered for re-sale when required. Many years ago, when registration times were long, it was a useful device, enabling a new project to be incorporated very quickly or a contract entered into in a company's name, etc. without waiting for the company to be registered. Now that electronic registration allows a new company to be registered very quickly, ready-made companies are very little used and we (like most others) no longer stock them.
A shareholder's agreement is a contract between the shareholders of a company in which they agree how the company will be run. They all agree that they will use their voting power in the company to ensure that the terms of the agreement are complied with for as long as they are all shareholders. Company Law Solutions has a very cost-effective shareholders' agreements service.
Go to our free company law website, by far the most comprehensive free source of information about UK company law on the internet.
Contact Incorporation Services Limited. Our friendly, professional staff will be pleased to advise.
