Different tax rates apply to profits or benefits from a business transfer:
- transfer to non-relatives is taxed at 20%
- transfer to first or second-degree relatives is taxed at 1.2% or 2.4% respectively.
Different regulations apply if the transferred business is listed on the Stock Exchange.
- A pecuniary transfer to non-relatives is taxed at a rate of 2.4% over the actual value of the transfer.
- Transfer in the case of inheritance, donation or parental provision from parent to child or between spouses is taxed at 0.6% or 1.2% in the case of other relatives.
During the transfer of shares of a PLC not listed on the Stock Exchange to relatives, a 5% tax rate applies.
Should a sole trader or part of a general or limited partnership company be transferred for value from parent to children or from spouse to spouse, due to retirement of the transferor, then no tax shall apply.
Types of business transfer
In case that the transfer of corporate status to a legal person is allowed by the articles of association, this can be done through a private document, as well as a corresponding deed and amendment to the articles of association.
There should also be a clear distinction between a company (single member companies, limited liability companies and public limited companies ) and a partnership (unification of entities in a legal form and through shareholding). Should the articles of association allow for this, these may be transferred to a third party.
Transfer types include:
- Unplanned transfer: sudden event (death, disability) or unforeseen financial disaster
- Planned full transfer: retirement of the transferor, transfer in order to help children financially, change of occupation
- Planned partial transfer: with or without transferring the management of the company
Concerns sole trader (natural person): can take place within the family through succession, donation, inheritance, transfer of total number of shares, deed inter vivos (sale contract) or in the case of death of the owner, through accepting inheritance.
Carried out through sale by the owner to the management or employees outside the family, as well as through sales to third parties or existing companies.
Takeover procedures depend on the company's legal form:
- As far as single-member companies are concerned, in case of death of the company owner, company ownership is passed on to his/her heirs. No limitations are imposed with regard to the universal transfer of single-member companies through a transaction in life or due to death (acceptance of inheritance). Acting as special successor, the new partner is responsible for both new and old corporate debt.
- As far as general partnerships are concerned, these companies may only be dissolved in specific circumstances, such as end of term, failure to achieve objectives, upon decision of partners, bankruptcy, death, etc. In addition, the deceased party's share must be paid to his/her heirs.
In the event of death or departure of the sole partner of a limited partnership, the company automatically becomes a general partnership. In a different case, the company is dissolved unless the necessary amendments are made to the articles of association. The transfer of the shareholding and the addition or departure of a partner may be provided for by agreement of all partners.
- As far as limited liability companies (LLC) are concerned, the shareholding of the limited liability company may, if the articles of association allow it, be transferred through notarial and legal formalities, or due to death. The LLC delegate may transfer part of his/her shares.
In the case of company mergers, the transfer of shares may be carried out directly or indirectly, through the withdrawal of a partner from the company while, at the same time, they assume the capital contribution made, through the corresponding reduction in capital.
Retiring business owners need to plan the transfer of their business in advance.
Some standard requirements to be completed when taking over a business are the same as when setting up a new business.
The formalities to be followed for the registration of a company after transfer to the Tax Office registers and the local Chamber of Commerce are the same as for every new company and depend on the company's legal form.
Trade and federations provide information on company transfer procedures.
Company transfer expenses may be covered by the Programme 5-04 of the Credit Guarantee Fund for Small and Very Small Enterprises (TEMPME). It provides credit guarantees for acquisition, mergers and transfers of small enterprises.