GmbH Sale of Shares
May 27, 2010 | 40,00 EUR | answered by Oliver Burchardt
With a notarial contract, the shareholders' shares - share capital 60,000 €, were purchased for 2.00 €. Not included in the sale were all cash and account balances, as well as all receivables, obligations, and liabilities that existed as of December 31, 2009. In the final balance sheet as of December 31, 2009, the following positions exist:
- Receivables from shareholders 67,479.02 € S
- Other assets 5,546.80 € S
- Other liabilities 2,530.98 € H
- Retained earnings 96,812.66 € H
- Net loss for the year 26,317.82 € H
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- Credit balance on loan guarantee account 60,000.00 € S
- Share capital 60,000.00 € H
Question:
Can the accounts be settled against each other in the 2010 fiscal year, with the exception of the loan guarantee account and share capital? Since no receivables and liabilities were taken over, does the loan guarantee account not need to be settled by the existing shareholder? The notarial contract does not mention a guarantee.
Thank you for your efforts.
Dear inquirer,
Thank you for your inquiry, which I would like to answer as part of an initial consultation.
Please note that the legal assessment is based on your description of the situation. Adding, changing, or omitting information can affect the legal assessment.
The sale of the shares of the GmbH initially has no impact on the balance sheet. In particular, the legal ownership of the assets and liabilities attributable to the GmbH does not change. Due to the agreement in the notarial share purchase agreement that the receivables and liabilities are not sold together, it is rather seen as a purchase price agreement, which results in the company being obligated to assign the receivables to the former shareholder or the former shareholder assuming the liabilities of the GmbH or granting the GmbH a reimbursement claim if it is held liable for these liabilities.
This results in the receivables and liabilities being offset against each other and only the net balance is to be shown as receivables or liabilities.
The same does not apply to the retained earnings and the annual deficit. These are not receivables or liabilities, but components of equity. These components remain unchanged, unless there are further agreements in the share purchase agreement.
Regarding the aval account, the former shareholder cannot act. I assume that the GmbH is the account holder. Only it can, acting through its representatives, close this account.
However, it is questionable what kind of account this actually is. An aval account usually does not represent a credit balance or liability, but only serves for the provision of aval guarantees, which can be drawn from this account up to the maximum limit stated in the contract. Activation or recognition as a liability does not normally occur. Therefore, I cannot conclusively answer this question without a more detailed understanding of the circumstances and contractual arrangements.
I hope my explanations have been helpful to you.
Kind regards,
Oliver Burchardt
