Rejection of the Registration of an Ordinary Capital Increase due to Missing Stamp Declaration

Facts

On 1 July 1992, the General Meeting of [G. SA] resolved an ordinary capital increase, which was registered with the Commercial Register Office of the Canton of Zurich on 17 September 1992. The Commercial Register Office rejected the registration by decision of 9 February 1993, as a stamp declaration pursuant to Art. 80 para. 1 lit. d CRO was missing. The appeal filed by [G. SA] was dismissed by the Directorate of Justice of the Canton of Zurich and ultimately by the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that for an ordinary capital increase by cash payment, a stamp declaration pursuant to Art. 80 para. 1 lit. d CRO must be submitted to the Commercial Register Office together with the registration. This declaration serves to protect the interests of bona fide third parties, shareholders and creditors by confirming that there are no other contributions in kind, acquisitions of assets, set-offs or special advantages other than those mentioned in the registration.

The Federal Supreme Court followed the argument of the Federal Office for the Commercial Register that Art. 80 para. 1 CRO exhaustively lists the documents that must be submitted to the Commercial Register Office with the registration. The stamp declaration must therefore be submitted even if no…