What advantages and disadvantages does an asset deal have?
The asset deal means the transfer of certain assets, liabilities and legal relations of a society or a society to a buyer. Implemented according to § 433 BGB, the REM transfer according to §§ 929ff, 873, 413 in conjunction with § 398 BGB.
Advantages:
- The buyer and the seller know exactly what he buys or sells
- Individual assets and/or legal relationships can remain in the issuing company (cherry picking)
Liability in accordance with § 434 BGB (defect) - Unwanted risks, z.Bsp. fiscal nature remain in the jacket if the seller
- Depreciation of the purchase price over distribution to the individual assets in the amount of the respective partial values, see § 7 ITA
- Amortization of acquisition-related costs on the individual assets
- The gain goes to the company and may be offset against existing loss carry-forwards and other tax possibilities. For distribution of the profit to corporations: Tax burden, s.h. share deal, for distribution to individuals attack the flat tax on (to be by the company) in the amount of currently 25% plus solidarity surcharge. Thus, the tax for natural person is compensated. The taxes of the company (GewSt, KSt.) are unaffected
- No sales tax. as far as article 1 para 1A UStG is respected
Disadvantages:
- Certainty principle, that is, partial more elaborate definition of the assets to be sold / legal relationships
- Consent requirement for the transmission of legal relationships (customers, suppliers, employees), analog § 415 BGB
A complete or even vast purchase of assets can i.S. Antitrust law trigger an acquisition of control, so that is may be Genehmigungspflich - Formal requirements:
- Land purchase contract gem. § 311 para. 1 BGB notarization of the entire contract, thus also informal agreements gem would be null and void. Sections 125, 139 BGB, which in turn can be cured through the land registry.
- Transfer of all assets within the meaning § 311b para 3 requires notarization. Due to judgment OLG Hamm is taken after observation of the author to record almost all asset deals
- Movable property, assets and intellectual property generally Form free – s.h. But judgment OLG Hamm, as well as on property rights assignment affidavit, z.Bsp. § 27 ABS. 3 and § 28 brands
- Workers: Application of § 613a BGB, in part of an undertaking – Cidfont-nung of the workers. In existing collective agreements they go 613a para 1 sentence 2 to the buyer on, as far as this doesn’t has in the event of the employee through their own collective bargaining agreements to transfer the Termina ment this with the assignor
- Works Council if present: participation is 111 BetrVG, but a change of the holder’s no operational changes to section 106, section, here § 613a for the protection of workers. Change in participation status can
- Coat remains with the seller, possibly with all that existing risks and is to conduct
Due diligence is confined to the acquired assets, liabilities and legal relations. This is cheaper than a share deal. The issue of consent requirements of suppliers, customers and employees can be solved through appropriate clauses in the contract so that the associated risks in fact economically are transferred to the buyer.
Contentious issues, with significantly different risk assessments and / or Auffas solutions of the parties, which prove a deal breaker, can the mantle left in are. The liability and warranty risk is can be clearly definable, resulting in reduced the liability and warranty claims and limitation periods shortened. Depending on the particular case, the tax burden of the seller is lower than the share deal.
Is a general statement which transaction form – share or asset deal – from buyers or sellers point of view is better, my opinion not possible. This is determined by the parameters of the individual case.
Smaller SME and particularly crisis dominated societies without complex structures of subsidiaries can optimize an asset deal under certain circumstances that increase the likelihood of the sale and the purchase price.