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of “
total of the capital and the legal reserve funds.
” The first issue to
clarify here is the definition of capital and the legal reserve funds.
According to the first view, the preamble of Art. 376 of the TCC,
it includes the explanation of “
By the term of capital, the law maker
aims to predicate the registered capital found under the capital item of
the balance sheet.
” This means that the registered capital shall be the
total amount undertaken by the shareholders, which are designated
under the articles of association, and registered, accordingly.
Revaluation fund is not included in this amount. Moreover,
legal
reserve funds
are stipulated under Art. 519 of the TCC. This Article has
been regulated in view of the
numerus clausus
principle, and the items
other than the ones stipulated therein shall not be considered in calcu-
lation of legal reserve funds
7
. Due to the fact that such provision
explicitly indicates that the premium of newly issued shares shall be
added to the legal reserve fund, premiums on issued capital shall be
regarded in calculating the legal reserve funds. By virtue of the fact
that inflation correction differences are not listed under Art. 519, they
shall not be taken into consideration in calculation of legal reserve
funds
8
.
In accordance with the opposing view, in order for the precautions
on the loss of capital to be taken, the equity that is equal to the resid-
ual of the difference between the assets and the liabilities of the com-
pany should be less than half or one-third of the total amount of capi-
tal and legal reserve funds. As per such view, due to the fact that all
assets and liabilities of the company shall be regarded in determination
of the equity of the company, all resources that constitute the assets of
the company, such as the capital, undistributed profit, legal, contractu-
al, mandatory and voluntary reserve funds, revaluation funds should be
considered in the event of capital loss.
14
NEWSLETTER 2015
7
Sermaye Ortakliklarinin Yeni Hukuku, Degiştirilmis ve Duzenlemelerle Guncellestirilmis 3.
Basi, Vedat Kitapcilik 2013, p. 244.
8
Prof Dr. PULASLI Hasan
, Yeni Sirketler Hukuku Genel Esaslar, Guncellenmis 2. Basi Ankara
2013, p. 467.