The LLCs are “personal oriented entities”, i.e. the identity of the persons that integrate such entity is relevant. In such companies the owners – which must be at least two - own quotas in the company’s capital, and the unanimous consent is necessary to modify its by-laws, regardless of the percentage of participation that a given quotaholdermay have.
The transfer of quotas in an LLC requires the modification of the company’s bylaws.
The administration of an LLC corresponds to one or more partners, and it must be performed personally or through a common proxy.
The liabibility of the quotaholders for the LLC’s obligations is limited to the value of the quotas they hold in the LLC.
According to the above, the LLCs are notrecommendable when the quotaholders have opposite interests, which may enter into a conflict. However, it is of no relevance when both quotaholders are part of the same economic group.
B.2 Stock Corporations (“SA”)
SAs are “capital oriented entities”, i.e. the most relevant element of their conformation is capital, and therefore the identity of the shareholders is not necessarily relevant.In such companies the owners – which must be at least two – own shares in the company’s capital, which are essentially of free transferability. Notwithstanding, the law provides that the shareholders may agree differently in the bylaws or in shareholders agreements, and therefore restrict the freedom for the transfer of shares.
The most transcendent decisions of the company (profitdistribution, director appointment, modification of the bylaws, etc.) are part of the attributions of the Shareholders Assembly –which may be ordinary or extraordinary-, where the shareholders exercise their political rights, i.e. the vote.
In the shareholders meetings the decisions are made according to the majority of votes (one share one vote). Upon the shareholders assembly’s sessions, a minute has tobe made, which must be reduced to a public document, registered in the Commerce Registry and published in the Official Gazette.
The SAs are administrated by a board of directors, which are appointed by the Shareholders Assembly. The board of directors must appoint a general manager - which can not be the board of director’s chairman - to execute the policies and run the business according tothe guidelines of the mentioned collective organ.
SAs usually require accounting inspectors that perform a work similar to external auditors, in connection with the review of their financial statements.
SAs are generally recommendable when opposite interests exist amongst the shareholders, given that majorities govern such company.
B.3 Company by shares (“SPA”)
SPAs are “capitaloriented entities as well”, and were created as a kind of legal vehicle from year 2007 onwards.
They can be incorporated by one or more individuals or legal entities, and their participation in the entity’s capital is divided in shares.
Their administration can be determined freely by partners in the company’s bylaws.
SPAs are considered, in everything that is not specially regulated by lawor the shareholders, as closed SAs.
The SPA vehicle offers advantages in its incorporation (i.e., no need for a minority shareholder), its management (i.e., by-laws may set forth a simplified process for management), transferability of the shares (similar to SAs), and generally more freedom for setting conditions in the by-laws.
B.4 Tax considerations
There are several tax differencesbetween the referred types of subsidiaries. We will briefly review the main differences.
(a) Capital gain taxation on the transfer of the investment
As a general rule, gain realized (if any) in connection with transfer of quotas in a Chilean SRL, performed by a foreign seller, should be subject to a combined 35% tax burden.
Gain on the transfer of interests in a Chilean SRL is...