{"id":9035,"date":"2022-10-05T14:44:00","date_gmt":"2022-10-05T12:44:00","guid":{"rendered":"https:\/\/reyns-advocaten.be\/?p=1195"},"modified":"2026-06-26T11:34:44","modified_gmt":"2026-06-26T09:34:44","slug":"overdracht-bedrijfsovername-2","status":"publish","type":"post","link":"https:\/\/reyns-advocaten.be\/en\/overdracht-bedrijfsovername-2\/","title":{"rendered":"Business acquisition: transfer of shares or of the business assets?"},"content":{"rendered":"\n
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Written by<\/strong><\/p>\n

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Nicolas Verhelle<\/a><\/p>\n <\/div>\n

Expertise<\/strong><\/p>\n

\n Companies and M&A<\/a>\n <\/div>\n

Publication<\/strong><\/p>\n

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5 October 2022<\/p>\n <\/div>\n <\/div>\n<\/div>\n<\/div>\n\n\n\n

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If you want to acquire or transfer a business, there are usually two possible ways to complete that transfer. A first option is a share transaction<\/strong>, in which the seller transfers the shares of the company (including all assets and liabilities) to the buyer (share deal)<\/em>. The second option concerns the transfer of a business fund<\/strong>, whereby the buyer purchases the desired assets (asset deal)<\/em>. In that case, the buyer acquires only the assets of the business that are specifically included in the transaction.<\/p>\n\n\n\n

In this news blog, we provide further clarification on these two options and discuss their specific advantages and disadvantages.\u00a0<\/p>\n\n\n\n

Transfer of shares or share deal<\/strong><\/h2>\n\n\n\n

In an acquisition of the shares of a company, the seller transfers all rights and obligations connected to the company. This includes ongoing contracts, legal proceedings, debts, etc.\u00a0<\/p>\n\n\n\n

The activities continue under the same legal entity and with the same company number. The advantage is that continuity is preserved and all existing contracts continue (except for contracts that contain a change of control clause). The disadvantage, however, is that the buyer also assumes all past debts and risks.<\/p>\n\n\n\n

In such a transaction, it is therefore extremely important for the buyer to carry out proper due diligence, so that they are not faced with surprises and no proverbial skeletons come out of the closet. The risks identified as a result of this due diligence do not necessarily have to be a deal breaker. They must either be taken into account when determining the purchase price or be reflected in the guarantees given by the seller to the buyer.<\/p>\n\n\n\n

From a tax perspective, this is an attractive option for the seller. When you sell shares as a natural person, the capital gain on them is in principle tax-free. The shareholder-natural person therefore receives the acquisition price entirely net. Even when a company sells shares, the capital gain is exempt from corporate income tax provided that the selling company holds a shareholding of at least 10% or the acquisition value amounts to at least 2.5 million euros.\u00a0<\/p>\n\n\n\n

Transfer of a business goodwill or asset deal<\/strong><\/h2>\n\n\n\n

When there is a takeover of a business goodwill, the acquirer takes over specific assets in consultation with the seller. As a rule, the debts are not taken over, which is a fundamental advantage for the acquirer.<\/p>\n\n\n\n

There is no legal definition of a business goodwill, but in general it can be said to include all tangible and intangible movable assets that make it possible to continue operating a business. The following elements usually form part of a business goodwill: trade name, logo, clientele, materials and equipment, inventories, website and social media accounts, the commercial lease agreement, etc.<\/p>\n\n\n\n

It is important to note that existing\/ongoing contracts must each be transferred separately, whereby the acquirer always needs the consent of the other contracting party.<\/p>\n\n\n\n

An additional point of attention is that, in the event of a sale of business assets as a whole, the acquirer is, to a certain extent, jointly liable for the seller\u2019s tax or social security debts. We therefore advise the acquirer to request from the seller the specific certificates guaranteeing the absence of tax and social security debts relating to the business goodwill.<\/p>\n\n\n\n

The acquisition of a business concern creates the possibility of depreciating the acquired business assets based on their acquisition value, which is an advantage for the buyer. The transfer of a business concern becomes less favorable if the business concern contains real estate. After all, a sale of real estate will trigger transfer tax.\u00a0<\/p>\n\n\n\n

From a tax perspective, the seller must take into account that, upon the sale of the business concern, the acquisition price is received in the transferring company. This means that, in order to pass the acquisition price on to the individual shareholder, withholding tax on movable income must still be paid, making this transaction \u2014 compared to a share transaction \u2014 less attractive from a tax perspective for the seller.<\/p>\n\n\n\n

Lastly, it is also important to note that, in the transfer of a business concern, you must take into account the application of CLA No. 32bis, which is intended to safeguard the preservation of employees’ rights in all cases of change of employer resulting from the transfer of a business concern. CLA No. 32bis provides that “the rights and obligations arising for the transferor from the employment contracts existing at the time of the transfer … shall, by reason of that transfer, pass to the transferee”<\/em>. The buyer of a business concern must therefore assume the obligations arising from the employment contracts that exist at the time of the transfer. Thus, by the mere fact of the transfer of the business concern, the employment contracts of the employees concerned are transferred by operation of law to the buyer.\u00a0<\/p>\n\n\n\n

Conclusion<\/strong><\/h2>\n\n\n\n

The choice between a share acquisition and an acquisition of the business assets depends on the specific situation and the wishes of the parties. If the acquirer is only interested in taking over a particular business line or is only interested in the business assets, without wishing to assume any real estate or liabilities, then a transfer of the business assets is the more obvious choice.<\/p>\n\n\n\n

In any event, when acquiring a company, in whatever manner, it is important that the relationship between the seller and the acquirer is properly set out in an agreement, so that later disputes are avoided. The M&A team at Reyns Advocaten is happy to assist you in determining the right acquisition structure and setting it out in an agreement.<\/p>\n\n\n\n

Wenst u meer informatie over de verschillende mogelijkheden inzake de overdracht of aankoop van een onderneming, <\/em>neem dan gerust contact met ons op.<\/em><\/a> Een onderneming kopen of verkopen doet u niet alle dagen. Als het dan gebeurt, verdient u de beste zorgen en begeleiding.<\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n\n

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If you want to acquire or transfer a business, there are usually two possible ways to complete that transfer. A first option is a share transaction, in which the seller transfers the shares of the company (including all assets and liabilities) to the buyer (share deal). The second option concerns the transfer of a business […]<\/p>\n","protected":false},"author":3,"featured_media":1197,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"footnotes":""},"categories":[25],"tags":[],"class_list":["post-9035","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-nieuws"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t