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What it does suppose is a qualitative modification of said patrimony, since the funds thus transferred go from the availability regime that they enjoyed as reserves to the unavailability to which they are subject as capital. Therefore, an essential requirement for the capitalization of reserves or benefits is not only that they are considered own resources, but also that they be freely available, since capitalization is one of the ways in which society exercises its power to freely dispose of them.

The availability of reserves must therefore be understood as the freedom to apply them to any purpose, including distribution among partners. And that application of the reserves is only possible as long as there are no losses that have to be previously cleaned.

Article 273.2 of the Capital Companies Law limits the freedom of the General Meeting when applying the results, first of all the positive for the current year, but also the distribution of freely available reserves as the value of equity net accounting does not continue to be after the distribution greater than the share capital. Moreover, it results from the logic of the system that the legal reserve should also be included along with the capital, in the percentage legally required when computing the possible surplus of net worth that remains freely available. In short, the free availability of reserves is limited by the function they are called upon to perform: the coverage of recorded losses. And if they are not fully available, they do not meet the requirements legally required by article 303 of the Capital Companies Law for their capitalization.

Despite the fact that neither in our Limited Liability Companies Law before, nor in the current Consolidated Text of the Capital Companies Law –as pointed out by the appellant– there is a provision such as, for example, paragraph 208.2 of the “Aktiengesetz” Germany, which expressly prohibits the increase in capital charged to reserves if the balance sheet shows losses, it is clear that what is important is not the mere reflection of the reserve item on the balance sheet that serves as the basis for the expansion, but the actual existence of surplus of the assets over the previous capital and the payable liabilities, according to said balance, although the economic vicissitudes of the company, subsequent to that one, may later determine the elimination of those losses.

Therefore, this General Directorate has agreed to dismiss the appeal and confirm the qualification note of the registrar.

Capital: increase.- 1. It is debated in this appeal whether in an increase in the capital stock of a limited liability company, and consequent statutory modification, approved by the universal meeting, being the equivalent of the capital increase contributions from all partners except one of them (who have renounced their pre-emptive acquisition right), consisting of compensation of credits of the partners against the company and monetary contributions, it is necessary to identify the shares assigned in payment of the credits that are offset by the increase in capital, with its consequent numbers, of the shares attributed by the contributions in cash.