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Politik | 07.03.2019

Aus IZSpecial anlässlich der Immobilienmesse MIPIM/2019, S. 206

Von Peter Dietz

In diesem Artikel:

Share deals are getting more difficult to strike

Share deals are set to lose much of their appeal in Germany. The Bundestag is preparing a bill lowering the threshold for tax exemption and extending holding periods.

"Foreign investors will be hit hardest when changes for limited companies enter into force,” says Axel Schilder, a Partner of the King & Spalding law firm. In the past, sales of shares in limited companies were admissible with no minimum size and/or duration of the shareholding, provided the transaction was structured appropriately. Now, however, at least one shareholder on the seller's side has to hold a stake of at least 10.1% for a minimum continuous period of ten years.

Schilder expects that this amendment will prevent the short-term price increases typically observed when shareholders fully acquire or exit a company limited by shares. "The old approach was particularly attractive for foreign investors as they were able to combine forces with a known co-investor.” However, basic investment will now have to be long term if you want to save on property transfer tax.

Schilder warns that borderline cases might result from the reform. Stock corporations - where shareholder affiliation changes continuously - will find it hard to detect when the magic threshold triggering property transfer tax, a cost factor and return killer, is reached. "Resulting uncertainty may turn into a real obstacle for foreign investment,” Schilder says.

In future, international stakeholders will have to get along with at least one German minority shareholder for a minimum of ten years, says Esfandiar Khorrami, a lawyer and partner at Bottermann Khorrami. "For the most part smooth operations will be ensured by way of a joint venture agreement.” During negotiations and in day-to-day operations, however, cultural differences may cause clashes, he thinks, because investors in the UK and the US have more leeway in managing their business with minority shareholders than in Germany.

"Compared to other countries, share deals have always been subject to heavy taxation in Germany,” says Martina Hertwig, a partner and auditor at Baker Tilly. In many European countries like Belgium, Sweden and Italy, share deals aren't taxed at all. According to Hertwig, investors from the US, Canada and the UK classically invest by means of share deals since this is the most popular type of investment on their home turf where asset deals aren't common practice. "Part of the investor community from English-speaking countries is likely to refrain from real estate investments in Germany after the reform because managing the company and continued operations can become overly complex with bigger minority shareholders,” she says.

The new Act shall take retroactive effect as of January 1, 2019. However, the reform has not yet been adopted.

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