Law

Vienna

Asset Deal vs Share Deal when buying real estate in Austria

By Nadja Holzer, Hasberger_Seitz & Partner Rechtsanwälte GmbH

The two best known types of acquiring real estate property in Austria are the asset deal and the share deal. Some of the main differences between an asset deal and a share deal, focusing on liability issues, will be established in the following article. Due to complexity, the article can only display single aspects, as a detailed outline would be well beyond its scope.

The main difference between the share deal and the asset deal is that via an asset deal, one buys single or more assets or parts of a company. The so purchased asset(s), may for example be a property. Via a share deal, on the other hand, one acquires all or part of the shares of a company, which in turn owns real estate property or subsidiaries which themselves own real estate property. Broadly speaking, an asset deal regarding real estate property leads to a legal change of ownership of the realty itself, while within the framework of a share deal the legal ownership of the realty does not change, but the shareholders of the company change.

Differences in Tax and Fees

As mentioned above, an asset deal includes a change of ownership of the realty itself which results in a real estate transfer tax liability (Grunderwerbsteuer) amounting to 3.5% of the purchase price. Furthermore, if the buyer wants to get registered as the legal owner of the realty, they have to pay a fee amounting to 1.1% of the purchase price for the incorporation of his ownership in the Austrian land register (Grundbuch). Depending on the particular nature and structure of the companies involved, it may be possible to reduce the aforementioned tax liability and fees and in some cases even prevent tax liability and fees entirely when choosing a tax and fee optimized structure. In the event of a share deal, for example, a reduced real estate transfer tax rate may be applicable. Furthermore, as within the framework of a share deal, the legal ownership of the real estate does not change; there is no need for incorporation of ownership in the Austrian land register and therefore no fees resulting from such.

Liability

Especially when buying parts of companies, a great deal of different statutory provisions have to be considered to prevent the parties from comprehensive and often unexpected costs subsequent to the deal. In Austria there are quite a few statutory provisions concerning liability in connection with share deals and asset deals.

Share Deal

When choosing a share deal, the most relevant provisions regarding liability of both the purchaser and the seller are set by the Austrian Corporate Code (Unternehmensgesetzbuch) and the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). According to the Austrian Corporate Code the purchaser, for example, is responsible for any contractual and other legal relationships of any kind, receivables and liabilities, uncertain liabilities etc. of the acquired reality. Furthermore, for a period of five years after the transaction the withdrawing and the new shareholder are both liable for any and all debt originated prior to the transaction and become due within those five years. As these statutory provisions serve the protection of third parties, they are obligatory in most cases and contractual exclusions of liability are not legally effective.

Asset Deal

The first step when acquiring realty in form of an ‘asset deal’ is finding out if the transaction is to be classified as common sales contract or as an asset deal in light of the acquisition of a company or a business under Austrian law. The essential provision when determining whether the provisions regarding undertakings come to effect is paragraph 1409 of the Austrian Civil Code. For this provision to be applicable, one either has to buy a company or one or more essential asset(s) of a company. When it comes to the acquisition of real estate, there is a certain probability of it being regarded either as a company, when for example the concerned estate depicts the core of a company or enables the company to continue its business operations (e.g. hotel), or an essential asset. If the acquired real estate is deemed a company or an essential asset according to the quoted regulation, provisions regarding undertakings may be applicable and the buyer will be liable for any debt that he has known or should have known when buying the company or asset. If neither of those cases occur, the transaction will most probably be regarded as a common sales contract in a sense that statutory provisions regarding undertakings are not applicable and the acquirers ‘only’ have to comply with the provisions regarding common sales contracts.

If the provisions regarding undertakings are applicable, liability provisions according to paragraph 38 Commercial Code are also to be considered. This provision stipulates that the new shareholder takes on the current legal relationships of the company and is therefore liable for all existing legal relationships of any kind. Additionally, certain special liabilities may occur concerning taxes, employee claims, intellectual property rights etc. However, most of the various statutory provisions regarding the different liabilities are contractually negotiable and may even be fully excluded; therefore, determining all possible sources of liability risks should be an essential part of every due diligence review.

Conclusion

When acquiring real estate in Austria, especially when acquiring from a company, there are several things to consider when deciding on how to structure the transaction. Two of the most prominent things to consider are taxes and fees on the one hand and possible liabilities on the other. When deciding not to structure the acquisition as a share deal but as an asset deal it is important to understand that statutory provisions regarding undertakings still might be applicable, even if one ‘only’ acquires a single real estate property.


Nadja Holzer

Nadja Holzer

Hasberger_Seitz & Partner Rechtsanwälte GmbH, Vienna, Austria
T: +43 1 533 0 533 410
E: This email address is being protected from spambots. You need JavaScript enabled to view it.; W: www.hsp-law.at


Published: September 2018 l Photo: ©Creativemarc - stock.adobe.com

GGI Logo 70x50px

GGI Geneva Group
International AG

Schaffhauserstrasse 550
P.O. Box 286
8052 Zurich
Switzerland

Contact

T: +41 44 2561818
F: +41 44 2561811
This email address is being protected from spambots. You need JavaScript enabled to view it.
www.ggi.com

Disclaimer

Disclaimer and Privacy Notice

Legal Disclaimer

This website is managed by Geneva Group International AG Zürich (hereinafter referred to as "GGI") on behalf of the member firms of GGI, a worldwide organization of independent Law, Accounting and Consulting Firms. GGI provides information and documentation on World Wide Web sites, such site(s) being known as the GGI Internet (hereinafter referred to as the "Website"). If you make any use of this Website, you confirm that you agree to each of the terms and conditions set forth below. You shall not be authorized to use this Website if you do not agree with any of the terms and/or conditions set forth below.

GGI, a company incorporated in accordance with the laws of Switzerland, provides no legal, audit or other professional services to clients. Such services are provided solely by GGI member firms in their respective geographic areas. GGI and its member firms are legally distinct and separate entities. They are not and nothing shall be construed to place these entities in the relationship of parents, subsidiaries, partners, joint ventures or agents. No member firm of GGI has any authority (actual, apparent, implied or otherwise) to obligate or bind GGI or any other GGI member firm in any manner whatsoever.

No action should be taken or omitted to be taken in reliance upon information contained in this Website. The information contained and accessed on this site is provided by the member firms of GGI for general guidance and is intended to offer the user general information of interest. The information provided is not intended to replace or serve as substitute for any accounting, legal (in those jurisdictions where GGI member firms are permitted to practice law), tax or other professional advice, consultation or service. You should consult with a professional from a GGI member firm in the respective legal, accounting, tax or other professional area. Based on specific facts or circumstances, the application of laws and regulations may vary.

Based on the fundamental universal condition of the electronic communication process, GGI does not guarantee, warrant and/or offer any assurance that this Website (including its functions, contents, downloadable files, software etc.) will be uninterrupted, without delay, error-free, omission-free, or free of viruses, free of Trojan horses, similar destructive software and/or free of harmful codes which may impair the proper functioning of any software, hardware or other equipment and/or materials of the user. GGI does not guarantee, warrant and/or offer any assurance that this Website is compatible with any user's computer equipment (hardware and/or software) or network through which access to this Website is gained. GGI does further not guarantee, warrant and/or offer any assurance that the use of this Website will not lead to viruses, Trojan horses and/or similar destructive software accessing any user's computer equipment.

Access to this Website may be interrupted or unavailable at any time, in particular during maintenance or upgrade procedures. Therefore, the information is provided "as is" without warranties of any kind, express or implied, including accuracy, timeliness and completeness. In no event shall GGI or partners, executives, principals, agents or employees of its member firms be liable for any direct, indirect, incidental, special, exemplary, punitive, consequential or other losses and/or damages of any kind (including, but not limited to, liability for loss of use, data, profits, other intangibles, the costs of procurement of substitute goods and/or services), without regard to the form of any action, including but not limited to contract, negligence or other tortuous actions, arising out of or in connection with this Website, any content on or accessed by use of this Website, or any copying, display or other use hereof even if GGI has been notified of the possibility of such loss and/or damage. All statements, information, downloadable data and files etc. on this Website are made available without liability or guarantee for their correctness, completeness, accuracy, durability, assurance of features, reliability, workability, merchantability, quality, fitness for a particular purpose, achievement of results, non-infringement of proprietary rights, absence of any deficiencies or something similar. GGI shall not be liable for any damage which a user may suffer as a result of any errors in content or arising from any virus or other destructive software. Users are responsible for ensuring that their computer equipment has appropriate security and virus protection features.

All intellectual property rights (in particular copyrights, trademark rights, design rights and patent rights) to the contents of this Website shall be reserved. As content on the site is protected by intellectual property laws (such as for instance copyright, trademark, patent laws) as well as by unfair competition laws, any unauthorised use of any materials on the site may violate copyright, trademark, patent and other laws. Pictures, texts, graphics, computer software etc. which are contained, featured and/or downloadable on this Website may not be copied, downloaded or used in any other way unless indicated otherwise on this Website. Should a user download and/or print the materials on this Website for personal or non-commercial use, the user must retain all copyright and other proprietary notices contained in the original materials on any copies of the material and the source must be indicated completely. The complete and/or partial reproduction, transmission (electronically and/or otherwise), modification, public display, performance, distribution, linking, framing or other use of this Website for any public and/or commercial purposes shall not be allowed without the prior written consent of GGI and the complete indication of the source. GGI does not grant the users of this Website any rights (in particular no intellectual property rights), except for the rights that are necessary to use this Website for purposes permitted under these conditions.
Some links on this Website refer to other websites which have been set up and are operated by third parties. Such links are provided only as a convenience to users. GGI does not control and is not responsible for any of these sites or their content. GGI explicitly disclaims any endorsement or recommendation of and guarantee or liability for such websites of third parties.
This Website is not intended for persons who are subject to a jurisdiction that prohibits the publication of and/or access to this Website (be it because of the nationality, their age, the domicile or for any other reason). If you are affected by such restrictions, you may not access this Website.

GGI data protection policy

This privacy policy describes the collection and use of your personal data made by GGI Geneva Group International AG Zürich as data controller, a joint-stock company incorporated under Swiss law with Swiss company registration number CH-170.3.020.433-0 whose registered offices at Schaffhauserstrasse 550, 8052 Zurich, Switzerland (hereinafter referred to as "GGI"). GGI’s data protection manager is Mr. Marco IZZO, who can be contacted by email at the following address: izzo@ggi.com.

A. Which data does GGI collect?

In the context of your organisation’s membership in GGI (or potential membership) or collaboration or your participation to a GGI event, GGI may collect the following information about you: name, gender, title, date of birth, position, email address, phone number, key competences, practice area, special interests, CV, picture, social media pages (such as your LinkedIn profile), memberships, languages spoken, private, political and business positions, insurances, signature, address, travel arrangement details, accommodation preferences, credit card details, identity card or passport copy, visa information, participation in meetings, participation in optional activities, information about transactions and deals concluded.

GGI may also collect data about your (minor) children when they accompany you to events organised by GGI. In that case, GGI may collect their names, photo, accommodation dates, travel arrangement details, participation in optional activities and their identity card or visa when it is necessary.

This information may qualify as personal data under the applicable legislation (including the General Data Protection Regulation (GDPR) n° 2016/679).

GGI may also collect “special categories” of personal data, such as health condition, allergies and dietary preferences.
The collected personal data are considered useful or even necessary for GGI to provide its services to its members and events’ participants. Some data are mandatory (such as name, e-mail address, picture, address, accommodation dates, participation in meetings, participation in optional activities, your company name: without these data, you will not be able to benefit from GGI’s services. Other data is optional and will allow GGI to provide a better service.

B. Use of personal data

1. Purposes of the processing and legal bases for processing

GGI processes the above-mentioned information for the following purposes:
- Compiling and using general or specific mailing lists for sending newsletters, announcements (e.g. new members) and information emails (e.g. related to a particular conference)
- Listing in the GGI global directory publicly accessible online at www.ggi.com
- Organising and executing GGI activities (e.g. contacting members for participating in GGI projects such as writing articles for the newsletter or publications on social media, matchmaking and networking, organising social events, invoicing)
- Analysis of the activities and the functioning of the GGI organisations (e.g. post-event analysis based on the attendance of the delegates of the various sessions)
- Business development activities related to candidates for GGI membership, potential partnerships and/or collaborations
- Announcements on new members on social media and sharing of members’ articles on social media
- Inclusion in the GGI’s website internal area downloadable Excel files (including the contact details)
- Publication of tombstones related to members’ transactions

Where possible GGI requests your consent for the processing of your personal data. GGI will also ask for your specific consent when it processes sensitive data (e.g. dietary requirements). However, it is not always possible to process your personal data on the basis of your consent. GGI will process your personal data where you act as the contact person or representative of your organisation, for the performance of the contract that GGI has with your organisation (e.g. organisations of meetings, networking or conferences); such processing will serve the legitimate interest of GGI, your organisation and third parties involved. GGI also has a legitimate interest in processing the personal data of representatives or contact persons of prospects on the basis of its legitimate interests, i.e. for promoting GGI’s activities and membership. Similarly, prospects have a legitimate interest in being informed about GGI opportunities. Such processing has a limited impact on your rights and freedoms (as a representatives of your organisation), considering the non-sensitive nature of the data and the limited data processing involved.
Concerning the processing of special categories of data, you have given your explicit consent for such processing.

2. Recipients of personal data

GGI may share your personal data with other GGI members (e.g. for referrals or recommendations or in the context of Practice Group activities).

GGI may share your data with processors and GGI partners, such as genevents GmbH, GGI North America Services Corp., Geneva Group International (Latin America) S.A., Geneva Capital Group AG, Geneva Consulting Group AG, and GCG International AG. GGI will only transfer your data in the pursuit of purposes such as the organisation of events and conferences, networking, matchmaking or business development activities.

GGI may also share your personal data (in particular your name and contact details), when it communicates publicly on the (new) membership of organisations (e.g. for marketing purposes and for the listing in the global rankings). Recipients of your personal data will be organisations such as Association of International Law Firms Network (AILFN), European Group of International Accounting Networks (EGIAN), International Accounting Bulletin (IAB), Accountancy Magazine and Accountancy Age.

Your personal data may also be communicated to the general public when GGI sends newsletters or posts announcements via social media.

3. Transfer outside the European Economic Area

Your data will be processed outside the European Economic Area, i.e. in Switzerland, and transferred to and within the European Economic Area, the United States, Argentina and and Uruguay. These countries have been recognised as providing an adequate level of protection of personal data, by the adoption of an adequacy decision by the European Commission (see
https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en).

Your data may also be transferred to Thailand and the United Arab Emirates. Your rights as a data subject are guaranteed on the basis of the standard data protection clauses (as proposed by the European Commission).

4. Retention of your personal data

GGI will process your personal data as long as your data are useful for the listed purposes. In principle, it will store and use your data as long as your organisation is a member or a prospect of GGI and you remain a representative for your organisation. Where the processing is based on consent, GGI will stop processing your data when you withdraw your consent.

5. Your rights as data subjects

In addition to the information contained in this data protection policy, you have the right to access the personal data which GGI processes regarding you. Should the personal data that GGI has regarding you be incorrect or incomplete, you are entitled to have the data rectified.

You have the right to request from GGI the erasure of your personal data, when they are no longer necessary for the listed purposes, when you withdraw your consent or when you object to the processing (if GGI or third parties have no overriding legitimate grounds for the processing), when GGI has unlawfully processed the personal data or when GGI is subject to a legal obligation to erase the data. GGI will honour your request, unless it is subject to a legal obligation requiring it to process your personal data, the processing is done for reasons of public interest (public health), for archiving or statistical purposes and for the establishment, exercise or defence of legal claims.

You are entitled to request the restriction of processing (temporarily) if the accuracy of the personal data is contested, the processing is unlawful and you prefer the restriction of the processing to the erasure of your data, if GGI no longer needs your data except for the establishment, exercise or defence of legal claims or while it is being verified whether your legitimate interests override GGI’s.

You have the right to object to the processing, when the processing is based on GGI’s or third party’s legitimate interests, on the basis of your particular situation. You also have the right to object when your data are processed for direct marketing purposes by clicking the “unsubscribe” link in the newsletters that you receive.

You are entitled to receive the data concerning you in a structured, machine-readable format that is commonly used and you have the right to have the data transmitted to a controller of your choice (data portability).

You can exercise these rights by sending an e-mail to the data protection manager, Mr. Marco IZZO at izzo@ggi.com.
Should you have a complaint concerning the processing of your personal data, you have the right to lodge a complaint with the competent national supervisory authority.

Cookie Policy

A cookie is a small text file containing data for technical session logging and enabling GGI to store information related to the user's computer and/or device for the duration of the user's use of the Website.

Below you will find specifically the list of cookies used on the website:

Session (Necessary)

Google Analytics:
Cookies:
_ga
_gid
_gat

Cookies related to the analysis and monitoring of the software in question anonymously collect some data about the use of the site as page views, time spent on site etc. Also in this case no sensitive data that can connect the user to the navigation is stored, in this way respecting the privacy of the public web.

Google GoubleClick For Publishers - Small Business:
Cookies:
__gads

This cookies serve purposes such as measuring interactions with the ads on that domain and preventing the same ads from being shown to you too many times (banner GGI Members).

JB Cookies:
Cookie:
jbcookie

This cookie documents the declaration of consent to the use of cookies when using the homepage.

Locking or deleting Cookies

Users can set the computer's browser so that it accept / reject all cookies or to display a warning whenever a cookie is offered, in order to assess whether or not to accept.

The user is allowed, however, to change the default configuration ( default ) and disable cookies ( ie block a final ), by setting the security level higher. You can find information about how to manage cookies in your browser to the following addresses: Google Chrome, Mozilla Firefox, Apple Safari and Microsoft Windows Explorer.

If you disable the cookies that we use, this could affect navigation on our site, or prevent you from visiting certain sections or to use certain services offered by the site.

Security of information

GGI has implemented accepted standards of technical measures and security policies that are aimed at protecting the personal data it has under its control from:

  • unauthorized access
  • improper use or disclosure
  • unauthorized modification
  • unlawful destruction or accidental loss

All GGI personnel are required to keep personal information confidential and only authorised persons have access to such information. Please note that the Website contains links to other sites (including sites maintained by Partners) which are not governed by this privacy statement.

Choices

You have several choices regarding your use of the Website. In general, you are not required to submit any personal information when you visit our websites, but GGI may require you to provide certain personal information in order for you to receive additional information about our services and events. If you opt-in for particular services or communications, such as an e-newsletter, you will be able to unsubscribe at any time by following the instructions included in each communication or on the website.

Additional general conditions governing the Privacy Statement

The rejection of any liability and/or responsibility regarding the Website and its content and other terms and/or conditions contained in this Privacy Statement are also applicable to all companies associated or affiliated with GGI, particularly GGI member firms (Partners).

GGI reserves the right to change all and/or any of the regulations mentioned above at any time without any prior announcement. Unless explicitly indicated otherwise, the new regulations shall immediately apply to all information, indications etc. featured on the GGI Website. By continuing to use the GGI Website, you accept all changes of such regulations.

The invalidity or unenforceability in any jurisdiction of any of these terms shall not affect the validity or enforceability of any other of these terms. If any term is held to be invalid or unenforceable it shall be deemed to be amended to the minimum extent required to render such term valid or enforceable, such amendment to be determined by GGI.

The Privacy Statement indicated above shall be governed by and are construed in accordance with Swiss substantive laws (excluding the rules of the conflict of laws) and the courts of Zurich, Switzerland shall have exclusive jurisdiction in any possible dispute.


Copyright pictures

The copyright of the photos is published here or under the articles.

Geneva Group International; Rieder Media - Uwe Rieder
Fotolia.com: Kurhan; lagom; Abou Jaoude, Siegmar; Jürgen Effner; magcom; Maksim Šmeljov; Gilles Paire; david hughes; clayllama; robynmac; Dan Marsh; daphot75; Suzanne E.; Pierre-Yves Babelon; QQ7; Fotokon; reinobjektiv; cienpies; Alterfalter; Mark Yuill; Flying-Tiger; Katja Wickert; sk19; fazon; Andy Dean; Immo Schiller; Pavla Vanicka; jamesdavidphoto; sysiphus; Kirill_M; Herbert Esser; djama; Rafael Ben-Ari; ollirg; bruder jakob; soleg; Kobby Dagan; Chris Boswell; Hagit Berkovich; Ruzanna Arutyunyan; lilufoto; zybilo; Esther Wagner; pixelfux; Jim Parkin; Zacarias da Mata; Martina Berg; Konstantin Yuganov; Gail Johnson; maudanros; auremar; swisshippo; tobago77; rudi1976; tagstiles.com; detlef menzel; Luftbildfotograf; FotolEdhar; Temistocle Lucarelli; ErnstPieber; synto; ZINQ Stock; Tupungato; Barbara Helgason; Aleksey Khripunkov; Lucian Milasan; Gabriela; JonaSanpo Tokyo; Leonid Tit; Sven Hoppe; sborisov; denys_kuvaiev; G.J. Prozee; Andrey Burmakin; Digitalpress; gemenacom; arsdigital; deusexlupus; travelwitness; Alison Cornford; gena96; anyaivanova; spiritofamerica; G. Mönks Photografie; Moreno Novello; Picture-Factory; Galyna Andrushko; endostock; Thomas Röske; carlos; Mezzalira Davide; griangraf; laur7410; simon gurney; sborisov; ChantalS; th-photo;kbuntu; maudanros; apops; JR Photography; Josemaria Toscano; luanka; Tyler Olson; Jörg Hackemann; drubig-photo; AlfaSirius; arenaphotouk; vvoe; rolffimages; Ross Kummer; dabldy; silver-john; Wimbledon; nitroshoprod; Moreno Soppelsa; piccaya; Hawkeye; Horváth Botond; motodan; fazon; Minerva Studio; Digishooter; Mapics; TMAX; Fanchy; JFL Photography; kichigin19; Nmedia; fotofuerst; Henri FRONTIER; Marcin Kubiak; pitrs; goldencow_images; habrda; nattanan726; dmitrydesigner; PackShot; swisshippo; michaeljung; Friedberg; Rawpixel; bluedesign; Ralf Gosch; Forgiss; Frankix; Jörg Hackemann; Gilles Paire; JaimeP; peresanz; lumen-digital; Stefano Garau; AlexF76; industrieblick; sborisov; chris2766; mitifoto; kamonrat; Rainer Plendl; peresanz; Vojtech Vlk; scabrn; Luftbildfotograf; Andrew Kazmierski; bruno135_406; pressmaster; vandertens; Tom-Hanisch; Alexey Stiop; Patrik Stedrak; Jiri Foltyn; kosmos111; Tomfry; S.Alias; beerkoff; Peter Marble; forcdan; Henryk Sadura; TTstudio; samott; Nordreisender; QQ7; imagineilona; 072618; aroberlin; lunamarina; whitelook; Pavel Parmenov; Jeff; jcfotografo; Jiri Foltyn; JS; Robert Wilson; SNEHIT; Sergii Figurnyi; mandritoiu; tilialucida; rabbit75_fot; IRStone; stockphoto mania; saiko3p; zoltangabor; E. Adler; lovegtr35; kiravolkov; davidevison; Kruwt; alexandro900; Rafael Ben-Ari; Frédéric Prochasson; Halfpoint; fotoherkules; eddygaleotti; mandritoiu; Mik Man; ALCE; LUNYANSKIY; Sondem; heyengel; forcdan; IRStone; gianliguori; Henryk Sadura; .shock; SNEHIT; alex9500; mpodrucki; KarenDMartin; mimadeo; SNEHIT; IRStone; lena_serditova ; Friedberg; pixelABC; peshkov; Klaus Heidemann; photofang; frakala; Beboy; vacant; Noppasin; : Leonid Andronov; surangaw; dennisvdwater; Chris Lofty; Robert Kneschke; Gajus; chrisdorney; samografy; DOC RABE Media; vichie81; everythingpossible; Rafael Ben-Ari; Eisenhans; bakerjarvis; stokkete; hankimage9;