An economic operator who wishes to transfer ownership of the enterprise by sale, inheritance or succession must comply with the applicable rules associated with the legal structure of the organisation.
Types of takeover
For small family-owned companies, inheritance and succession are a way of taking over an enterprise without any money changing hands. In the case of inheritance, the transfer is usually free of charge to the acquirer; the rules on this are set out in the Inheritance Act.
Here, the respective Acts place limits on the right to inherit shares in the enterprise according to its legal structure. In cases where interests or shares are transferred, the ownership position must be registered in the way as an ordinary transfer or interests/shares in the enterprise concerned. The tax rules associated with inheriting shares can be found in the Tax Act.
As an alternative to selling the whole enterprise, the seller can transfer parts of it to new owners. The buyers may be family members, part-owners, employees and outside individuals or enterprises. Another alternative is to lease the enterprise to lessees for a period.
Before buying or selling shares in a partnership, one must consider the conditions that apply to the specific enterprise and any agreements between the owners. The rules for this are laid down in the current partnership laws.
Transferring a business enterprise - step by step
There are a number of important aspects to consider in connection with transferring a business enterprise. First, auditors, management consultants or lawyers should be involved in the process, to perform valuations, examine the whole business enterprise and draw up agreements.
It may also be worth using a real estate agent/consultant, who can assist in buying and selling the business enterprise.
Aspects that should be included in a agreement, and which may have a particular bearing on buying or selling, include:
- Sales of shares or contents.
- Possible exceptions for certain assets: If some assets are not to be included in the sale, these should be clearly specified and kept out of the agreement.
- Sale guarantees: Any sale guarantees should be specified.
- Instalment payment: The agreement may also contain a clause covering payment, and how this should be handled.
Taking over an existing company is a worthwhile alternative to setting up a new business.
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Procedures for transferring ownership
The ability to sell or acquire shares in a limited company is subject to a number of rules laid down in the Limited Companies Act to do with the articles of association, rights of first refusal and transferability of the shares.
Before buying or selling shares in a company, one must consider the conditions that apply to the specific company and any agreements between the owners.
It is important to adhere to the above-mentioned rules in the Limited Companies Act on reporting requirements for the company. Purchases of shares are entered in the company's register of shareholders.
Unlimited liability partnership
In an unlimited liability partnership, partners can drop out and new partners can come into the partnership. Changes to the composition of the partnership must be recorded in the partnership agreement which in turn has to be reported by way of coordinated registration to the Register of Business Enterprises. New partners must also notify the Tax Office that they have joined the enterprise.
Membership of a cooperative cannot be transferred to a new member. Membership linked to immovable property can, however, be transferred to a new member together with the property itself, provided that the statutes do not say that membership can be transferred to a new member with the consent of the board, general manager or others. New shareholders should be entered in the register of members of the enterprise without delay.
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