In a share deal, only the owner changes. The company itself remains the contracting party for customers, suppliers, banks and employees. Contracts therefore usually do not have to be transferred individually. Exceptions are change of control clauses, which give the counterparty a right of termination when ownership changes.
For sellers of mid-sized companies, the share deal is usually the preferred form. The purchase price flows directly to the shareholder, and the tax treatment is favourable. In return, the buyer takes on all legacy risks of the company. It therefore demands comprehensive warranties, thorough due diligence and often a retention from the purchase price.
Under German tax law, if an individual holds at least 1 percent of a GmbH, the capital gain is taxable under § 17 EStG, but only 60 percent of it under § 3 No. 40 EStG (partial-income method). If a holding GmbH sells, 95 percent effectively remains tax-free under § 8b KStG. The assignment of GmbH shares must be notarised under § 15(3) GmbHG. Tax loss carryforwards are generally forfeited if more than 50 percent is transferred (§ 8c KStG).
Example
Hypothetical example: A founder sells her GmbH shares for €5,050,000; her acquisition costs were €50,000. Of the €5.0 million gain, €3.0 million is taxable under the partial-income method. If she held the shares through a holding GmbH, only €250,000 (5 percent) would be taxable, calculated before disposal costs.
Sources
- § 17 EStG: Veräußerung von Anteilen an Kapitalgesellschaften, Bundesministerium der Justiz / gesetze-im-internet.de
- § 8b KStG: Beteiligung an anderen Körperschaften und Personenvereinigungen, Bundesministerium der Justiz / gesetze-im-internet.de
- § 15 GmbHG: Übertragung von Geschäftsanteilen, Bundesministerium der Justiz / gesetze-im-internet.de