Boards decide auditor valuation for non-cash foundation payouts

Boards of Danish erhvervsdrivende fonde that reduce grundkapital to distribute assets other than cash now decide themselves whether an auditor valuation report exists when they resolve the reduction.Erhvervsstyrelsen The assessment is made under erhvervsfondslovens § 33, cf. § 83, stk. 1, 1. pkt., and where the board concludes no vurderingsberetning is needed, the board itself fixes the value of the distributed assetsErhvervsstyrelsen. Board members then face liability in damages for any loss the foundation suffers if the value later proves materially different.Erhvervsstyrelsen Previously the auditor report was presented as mandatory in all such distributions.Erhvervsstyrelsen

Where the board does obtain a report, its form is unchanged. It is a so-called omvendt vurderingsberetning: a revisorerklæring with a high degree of assurance in which the auditor positively declares that the asset's value at most equals the distributed amount. A report relied on must be available at the time of the decision and no more than four weeks old; an older valuation must be redone.

The ledelseserklæring alternative is also unchanged. It remains available only for assets measured individually at fair value in the prior year's audited accounts, and for listed securities or money-market instruments taken at the average price over the four preceding weeks. The statement must describe the asset and its value, state the valuation method, affirm that the stated values at least equal the distribution or allocation, and affirm that no new circumstances affecting the valuation have arisen. The board answers for the valuation under the ordinary liability rule if it harms the foundation or its creditors.

Filing turns on an anmeldelse. The board reports the reduction through Erhvervsstyrelsens selvbetjeningsløsning no later than two weeks after its decision; Erhvervsstyrelsen decides on consent and, where given, publishes the decision. The filing must include a redegørelse explaining why the board wants the reduction, addressing future capital and consolidation needs so neither its purpose nor its creditors are put at risk, and addressing the reduction's necessity or appropriateness. A reduction to a særlig reserve must add a current plan stating what the funds will be used for and when. A bestyrelsesprotokol proving the decision complies with the rules must accompany the filing, plus a new dated vedtægt with the complete new wording wherever a deficit reduction is registered and wherever a distribution or reserve reduction is to take effect automatically.

The surrounding framework is unchanged. Reductions state the nominal amount and one of three purposes — covering a deficit, distribution, or allocation to a særlig reserve — and distribution decisions state cash or other values; grundkapital cannot fall below 300,000 kr. Deficit reductions take effect as an immediate bookkeeping entry, while distribution or reserve reductions trigger a four-week creditor invitation, with due claims settled and security provided on demand for contingent or disputed claims. Implementation follows automatically four weeks after the creditor period unless the board opted out or the foundation changed; a different amount needs a new decision and a fresh creditor round, and registration lapses unless completed by the annual-report deadline for the period of effect, at most twelve months after the decision was registered.

The duties stand under Lov om erhvervsdrivende fonde §§ 33-34 on valuation reports and management statements and §§ 81-86 on the decision, creditor protection, notification and implementation of capital reductions, applied through Erhvervsstyrelsen's consent and filing practice.