European Accounting Review
The European Union (EU) has been debating for several years whether to change from the legal capital regime as regulated under the Second Company Law Directive to a solvency test regime as applied in the USA, for example. Based on an analysis of direct compliance costs and capital maintenance systems in non-EU countries, the EU decided not to change the regulatory regime in the short term. This paper focuses on the indirect costs of these two regimes. The paper develops a model in which payouts are restricted by one of the two regimes and the equity holders have the choice between extending and liquidating the existing investments. I find that both regimes will create first-best incentives if their respective design parameters are properly balanced. Under a legal capital regime, however, first-best will be a random event, because accounting standards typically do not allow for the necessary interdepencies between the accounting for liabilities and investments. The advantage of a solvency test with respect to the implementation of first-best incentives diminishes if equity holders can misreport future prospects. Under the legal capital regime, misreporting incentives can be excluded by sufficiently conservative depreciation. A solvency test designed to achieve efficient decisions will always create incentives to overstate future cash flows.