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.
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.
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.
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.
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 HolzerHasberger_Seitz & Partner Rechtsanwälte GmbH, Vienna, Austria
T: +43 1 533 0 533 410
Published: September 2018 l Photo: ©Creativemarc - stock.adobe.com