What does "transfer of seat" mean for an LLC?
A transfer of seat occurs when the LLC transfers its seat to another political municipality. The seat is not simply the street or house number, but the political municipality registered in the commercial register. This is derived from Art. 117 Abs. 1 HRegV.
Distinct from this is the legal domicile. The legal domicile is the concrete address at which the company can be reached at its seat. This includes the street, house number, postal code, and town. It can be the LLC's own business address or a c/o address with another person or company (Art. 117 Abs. 2 HRegV).
In practice, this means: If an LLC moves within the same political municipality, normally only the legal domicile changes. If, on the other hand, it moves to another municipality, a transfer of seat occurs. It is precisely this distinction that determines whether a simple commercial register application is sufficient or whether the articles of association must also be amended.
What needs to be changed in the commercial register?
In the case of a transfer of seat of an LLC, the new seat and the new legal domicile in particular are entered in the commercial register. If the articles of association have been adapted, the new date of the articles of association is also entered. In the case of a transfer of seat to another registry district, Art. 123 Abs. 5 HRegV prescribes that, at the new seat, in particular the firm or name and the enterprise identification number, the fact of the transfer of seat with the old and new seat, the legal domicile at the new seat and, if applicable, the new date of the articles of association are registered.
In the case of the LLC, the seat is particularly important because the articles of association must mandatorily contain provisions on the firm and the seat of the company (Art. 776 Ziff. 1 OR). If the seat is moved to another municipality, the provision on the seat in the articles of association must therefore regularly be adapted as well. This amendment of the articles of association is not just an internal document, but must be publicly notarized and registered in the commercial register (Art. 780 OR).
So when you move from Zürich to Winterthur, from Bern to Köniz, or from Lausanne to Genf, it is not just a matter of a new address. The LLC is transferring its statutory seat. The commercial register must be able to trace this change.
When is an amendment of the articles of association required?
An amendment of the articles of association is necessary if the seat of the LLC specified in the articles of association changes. Since the seat is by law part of the mandatory content of the articles of association of an LLC, a genuine transfer of seat to another political municipality usually leads to an amendment of the articles of association (Art. 776 Ziff. 1 OR).
This amendment requires a resolution of the shareholders' meeting. For the transfer of the seat, the law requires a qualified majority: The resolution must combine at least two thirds of the represented votes as well as the absolute majority of the entire share capital with which an exercisable voting right is associated (Art. 808b Abs. 1 Ziff. 10 OR). The transfer of seat is therefore not treated like an ordinary everyday act, but as an important resolution of the LLC, which also serves to protect minorities.
The resolution on the amendment of the articles of association must be publicly notarized (Art. 780 OR). In addition, a complete new version of the articles of association must be submitted to the commercial registry office if the articles of association are amended or adapted (Art. 22 Abs. 3 HRegV). For articles of association of an LLC, notarization by a notary public is also required (Art. 22 Abs. 4 lit. a Ziff. 3 HRegV).
When is a mere change of domicile sufficient?
A mere change of domicile is sufficient if the LLC moves within the same political municipality and the statutory seat remains the same. Then only the concrete address changes, i.e., the legal domicile. The seat as a political municipality remains unchanged.
Example: An LLC has its seat in the city of Zürich and moves from Badenerstrasse to Seefeldstrasse. The seat remains Zürich. In this case, normally no provision on the seat in the articles of association needs to be amended. The commercial register must, however, record the new address where the company can be reached, because the legal domicile is registered in the commercial register (Art. 117 Abs. 2 HRegV).
It is different if the LLC moves from Zürich to Zollikon. Even if the move is physically close, the political municipality changes. Thus, this is a transfer of seat. In the case of an LLC, this regularly leads to the adaptation of the articles of association and to the public notarization of the corresponding resolution.
Which documents does the commercial register require?
In the case of a transfer of seat of an LLC, the commercial register primarily requires a formally correct application and the supporting documents for the amendment of the articles of association. In the case of a transfer of seat to another registry district, the legal entity must register for entry at its new seat (Art. 123 Abs. 1 HRegV). To the extent that the articles of association must be amended, the resolution on the amendment and a notarized copy of the new articles of association must be submitted with the application (Art. 123 Abs. 2 lit. b HRegV). In addition, the notarized signatures of the registering persons must be submitted (Art. 123 Abs. 2 lit. c HRegV).
In principle, the application is filed by one or more persons authorized to sign in accordance with their signatory power, or by an authorized third party (Art. 17 Abs. 1 HRegV). In practice, it must therefore be checked who is legally authorized to sign for the LLC according to the current commercial register entry. In the case of joint signatures, the corresponding number of signatures is required.
If the LLC does not use its own address at the new location, but a c/o address, a declaration by the domicile provider must also be submitted (Art. 117 Abs. 3 HRegV). The commercial registry office can also require evidence of an own address, for example if the impression arises that a c/o address actually exists but was not registered as such (Art. 117 Abs. 4 HRegV).
What happens in the case of a transfer of seat to another canton?
In the case of a transfer of seat to another canton, the LLC is registered at the commercial registry office at the new seat. The commercial registry office at the new seat decides on the entry. It then informs the commercial registry office of the previous seat and instructs it to delete the previous entry (Art. 123 Abs. 3 HRegV).
The deletion at the previous seat does not take place in isolation at some later date. The transfer of seat and the deletion at the previous seat must be entered in the day register on the same day, and the commercial registry offices involved must coordinate their entries with each other (Art. 124 Abs. 1 HRegV). At the previous seat, it is entered that the company has been registered in the commercial register at its new seat as a result of the transfer of seat and is deleted ex officio in the previous register (Art. 124 Abs. 3 HRegV).
For founders, managing directors, and shareholders, it is important to know: A transfer of seat across cantonal borders is not a new start for the LLC. The company remains the same legal entity. Its UID remains the same. What is changed is the seat, the legal domicile, and, if applicable, the date of the articles of association.
Which errors occur particularly frequently during a transfer of seat?
The most common error is confusing the seat with the address. Anyone who only changes the street but remains in the same municipality normally does not need to amend the articles of association. Anyone who, on the other hand, moves to another political municipality usually triggers an amendment to the articles of association of an LLC.
A second common error relates to the quorum. The transfer of seat of an LLC does not simply require any majority resolution. The law explicitly requires the qualified majority according to Art. 808b Abs. 1 Ziff. 10 OR. Depending on the articles of association, even stricter requirements may apply. Therefore, the articles of association should be checked before the shareholders' meeting.
A third practical error is with signatures. The application must be signed by persons who are authorized to do so according to the commercial register entry, or by a correctly authorized third party (Art. 17 Abs. 1 HRegV). If the signing rule is not observed, the commercial registry office can object to the application.
Finally, it is often forgotten that in the case of an amendment to the articles of association, the complete new version of the articles of association must be submitted (Art. 22 Abs. 3 HRegV). It is not enough to just submit the amended seat article separately.
How does the transfer of seat search work in practice?
The practical process begins with clarifying whether a transfer of seat or a mere change of domicile is actually taking place. After that, the new seat article is prepared and the shareholders' meeting is convened. The shareholders' meeting resolves on the transfer of seat with the required qualified majority according to Art. 808b Abs. 1 Ziff. 10 OR. The resolution on the amendment of the articles of association is publicly notarized (Art. 780 OR).
Subsequently, the complete new articles of association are drawn up and submitted together with the commercial register application. In the case of a transfer of seat to another registry district, registration takes place at the new seat (Art. 123 Abs. 1 HRegV). The new commercial registry office then coordinates the registration with the former commercial registry office (Art. 123 Abs. 3 HRegV).
If you need support with a commercial register mutation, Jurata will be happy to help you at any time: Mutations.
Frequently asked questions about transferring the seat of an LLC
Does every new address of an LLC have to be publicly notarized?
No. If the LLC moves within the same political municipality, normally only the legal domicile changes. Public notarization is typically only necessary if the articles of association have to be amended due to a genuine transfer of seat (Art. 780 OR).
Who has to sign the commercial register application?
In principle, the application is made by one or more persons authorized to sign in accordance with their signatory power, or by an authorized third party (Art. 17 Abs. 1 HRegV). The signing rule entered in the commercial register is decisive.
Does the UID remain the same after a transfer of seat?
Yes. In the event of a transfer of seat, the LLC remains the same legal entity. Under the entry at the new seat in the commercial register, among other things, the company or name and the enterprise identification number are registered (Art. 123 Abs. 5 lit. a HRegV).
Where must the application be submitted in the event of a change of canton?
In the case of a transfer of seat to another registry district, the LLC must register for entry at its new seat (Art. 123 Abs. 1 HRegV). The new commercial registry office then informs the former commercial registry office and initiates the deletion at the former seat (Art. 123 Abs. 3 HRegV).
