We are often asked about the best way for the shareholders of a commercial company to capitalise their company without resorting to third-party debt (i.e., from credit institutions, new shareholders through capital increases, or other mechanisms). This is because investment in the company does not end with the subscription of the initial share capital or successive capital increases.
Portuguese corporate law provides different mechanisms through which shareholders can financially strengthen the company without resorting to external financing. Among these instruments, supplementary contributions, advances, and ancillary contributions stand out, each with their own legal and tax characteristics.
The choice between these three forms of capitalisation is not merely an accounting decision, but rather a strategic decision that intersects corporate law and tax law. While supplementary contributions aim to directly strengthen equity and protect corporate creditors, advances and ancillary contributions are mostly forms of third-party capital that give the shareholder creditor status. This distinction is vital, as it determines not only the priority of repayment and the possibility of remuneration via interest, but also the stamp duty framework, where legal exemptions can dictate the economic efficiency of the operation.
In this article, we will analyse these three provisions in a simplified but detailed manner, with the aim of providing the reader with the general principles of each of the three mechanisms.
Supplementary contributions (prestações suplementares) are cash contributions that shareholders may be required to make in order to strengthen the company’s equity capital, functioning as an internal financing mechanism that dispenses with the formality of a capital increase. According to Article 210 of the CSC, their enforceability depends on express provision in the articles of association, which must set the maximum total amount under penalty of nullity. These contributions are exclusive to limited liability companies, although there is doctrinal debate about their analogous application to public limited companies.
Unlike loans, these contributions become part of the company’s equity, directly reflected through its assets. This means, on one hand, that the shareholder who makes the contributions is not treated as an ordinary creditor and, on the other hand, that by their nature, the law expressly prohibits these contributions from bearing interest, as stipulated in Article 210(5) of the CSC. As this is an obligation, failure to comply with making additional contributions, when required, may lead to the exclusion of the defaulting shareholder, as provided for in Article 212 of the CSC.
The reimbursement regime is particularly restrictive, aiming to protect third parties. According to Article 213 of the CSC, the return of amounts to members can only occur if the company’s net worth does not fall below the sum of the share capital and the legal reserve, and if the company is not facing insolvency. It is important to note that any refund requires prior approval through a General Shareholders Meeting, always respecting the principle of equality between shareholders.
In tax terms, the Stamp Duty Code (CIS) is silent on a specific exemption for these payments. As they are considered financial transactions, they fall under Item 17.1 of the General Stamp Duty Table.
Ancillary contributions (prestações acessórias) correspond to additional duties that members may assume towards the company, only if they are provided for in the articles of association, and whose content may vary depending on what has been stipulated in the statutes. Under the provisions of Article 209 of the CSC for limited companies and Article 287 of the CSC for public limited companies, these contributions may or may not be monetary in nature. Their purpose is not necessarily financial and may take the form of the provision of monetary resources, the provision of services, the supply of goods, or other obligations that contribute to the company’s activity.
One of the great practical uses of ancillary monetary contributions is to serve as an alternative to supplementary contributions in public limited companies. Since the law does not expressly provide for supplementary contributions towards public limited companies, companies may use ancillary contributions to obtain a similar financing effect. It should be noted, however, that there are concerns in doctrine about subjecting these contributions to the regime for the reimbursement of supplementary contributions.
As for the legal regime, Article 209(1) of the CSC refers to the rules of the corresponding typical contracts (such as loans, in the case of money). In the event of non-compliance, unlike supplementary payments, the exclusion of the shareholder does not automatically apply, but rather the general rules of the law of obligations, unless the bylaws stipulate otherwise. This provides greater protection for the position of the shareholder as the owner of the share or stock.
With regard to onerousness, ancillary contributions may be remunerated if this is specified in the articles of association. Article 209(3) of the CSC allows the consideration due by the company to be paid regardless of the existence of profits for the financial year, reinforcing the idea that, in these cases, the shareholder acts as a creditor. If the shareholder lends money in this form, the repayment may even affect funds needed to cover the share capital, as the shareholder is not limited by the principle of capital intangibility under these conditions.
For tax purposes, ancillary contributions of a pecuniary nature are treated in a similar way to supplementary payments. They are subject to Stamp Duty under the terms of Item 17.1 of the General Table, according to the established deadline. Although they can be seen as financial transactions, they face the same limitation of not clearly benefiting from the specific exemptions applicable to shareholders’ loans, which can make capitalisation more costly for the company.
Shareholders’ loans (suprimentos) correspond to financing granted by the shareholders to the company, usually in the form of loans or deferrals in the enforceability of credits, characterised by permanence in the financing of the company. Under the terms of Article 243 of the CSC, permanence is presumed when a repayment term of more than one year is stipulated, or when a credit is not demanded for an identical period. They differ from supplementary installments in that they are, in essence, liabilities.
In this scenario, the creditor of loan (the shareholder) enjoys a subordinate position and, in situations of dissolution or insolvency of the company, these credits are only satisfied after external creditors have been paid in full, as provided for in Article 245 of the CSC. This subordination is justified by the purpose of the shareholders’ loan, a mechanism for shareholders to support the company in overcoming certain difficulties or stable financing needs.
Its regime is, however, more flexible than that of supplementary contributions. The repayment of capital contributions and the payment of the respective interest are not limited to the existence of distributable assets (profits), allowing the company to use funds that would otherwise be tied up to cover the share capital. This gives the shareholder greater security regarding the recovery of the capital loaned to the company.
The use of capital contributions is possible in all types of commercial companies, including public limited companies, functioning as an agile long-term treasury tool. Unlike supplementary payments, capital contributions may accrue interest, and the general rules of the loan agreement (Articles 1142 et seq. of the Civil Code) apply to them, unless contradicted by the special rules of the CSC.
From a tax perspective, capital contributions enjoy a significant competitive advantage. Article 7(1)(i) of the CIS provides for an exemption from stamp duty for these loans and the interest thereon, provided that the shareholder has held at least 10% of the share capital for at least one year or since the establishment of the investee, provided that, in this case, the shareholding is maintained during that period. If these requirements are not met, the tax is payable by the company (the credit user) at rates ranging from 0.04% to 0.06% of the value of the loans.
The choice between shareholders’ loans, supplementary or ancillary contributions should not be arbitrary, as each figure shapes the relationship between the shareholder and the company in a different way. While supplementary contributions strengthen the company’s immediate solvency by integrating equity capital, they require greater commitment to risk from the shareholder, since their repayment is more restricted and dependent on the company’s financial health. On the other hand, shareholders’ loans offer greater flexibility for structural cash management, allowing for the receipt of interest and repayment less dependent on profits, although they remain subordinate to external creditors in insolvency scenarios.
In short, it depends on the proper balance between the company’s liquidity needs and the shareholder’s asset protection. The correct application of the regimes provided for in the Commercial Companies Code allows these internal financing tools to be used not only as a response to moments of poor financial health of the company, but as dynamic instruments for growth and corporate stability.
In preparing this article, the author consulted the following bibliography:
Código das Sociedades Comerciais em Comentário, Vol. III e V, Jorge Manuel Coutinho de Abreu, Coimbra, Almedina, 2018
Direito das Sociedades Comerciais, Paulo Olavo Cunha, 7ª edição Coimbra, Almedina, 2020
Prestações Acessórias, Prestações Suplementares e Suprimentos, Helena Salazar, Margarida Azevedo, Nuno Alonso Paixão, RCEJ | N.º 28 – 2017 | pp. 073-095
Sociedades por Quotas, Vol. I, II e III, Raúl Ventura, 4.ª Reimpressão da 2.ª Edição de 1989
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