Asset Deal or Share Deal? A Comparison for Sellers

The choice between asset deal and share deal is not a formality for lawyers — it shifts money and risk between the two sides of the table. Which structure ends up in the contract decides who gives something up. Those who understand why this is so, and what can be traded in return, turn a trench war over the structure into a transaction that reaches completion.

How we prepare and negotiate the structure question in the sale process is described on our page selling your company.

Asset deal or share deal: what concretely distinguishes the two structures in 2026?

In a share deal the shares change hands and the legal entity remains; in an asset deal individual assets pass — and from this follow measurably different results in 2026 for tax, real estate transfer tax, employees and depreciation.

Point	Share deal	Asset deal	Legal basis (DE / AT)
Form	Assignment of shares by notary (DE) or by notarial deed (Notariatsakt) (AT)	Transfer of each asset under its own rules	§ 15 GmbHG / § 76 GmbHG
Employees	Employer remains the same company	Employment relationships pass to the acquirer; in DE notification in text form and a right of objection within one month	§ 613a BGB / § 3 AVRAG
Depreciation for buyer	no new depreciation base on goodwill	Goodwill depreciable over 15 years	§ 7 para. 1 EStG / § 8 para. 3 EStG 1988
Real estate transfer tax where real estate is held	DE: from 90 % transfer of shares in 10 years; AT: from 75 % in 7 years (since 01.07.2025), 0.5 % or 3.5 % for real estate companies	Acquisition of land is subject to real estate transfer tax	§ 1 para. 2b GrEStG / § 1 para. 3 and § 7 GrEStG 1987
Amount remaining per EUR 100 of gain for the private shareholder of a GmbH (model calculation)	DE around EUR 71.5, AT EUR 72.5	DE around EUR 51.7, AT around EUR 55.8 (gain in the GmbH, then distribution)	§ 17, § 32a EStG, § 23 KStG / § 27a EStG 1988, § 22 KStG 1988

Statutes retrieved on 24.09.2026. Model calculation with top tax rate, without church tax, trade tax multiplier of 400 percent; derivation in the article Selling a GmbH: tax in a share deal and an asset deal. Not tax advice.

Two developments shift the calculation. In Austria, real estate transfer tax on a share deal has applied since the Budget Accompanying Act 2025 considerably earlier than before at 95 percent. In Germany the corporate income tax rate falls under § 23 KStG from 2028 step by step from 15 to 10 percent from 2032 — this makes the asset deal cheaper at company level over the years, but changes nothing about the second taxation on distribution.

The table answers what can be calculated. It does not answer why both sides nevertheless fight so hard over the structure.

Asset deal and share deal compared briefly: who prefers what?

In a share deal the buyer acquires the shares in the company and takes over the legal entity with everything in it; in an asset deal the buyer acquires individual assets and liabilities that are named in the contract. This produces a typical, though not mandatory, pattern of interests.

Perspective	Tendency	Main motive
Buyer	often asset deal	selection of the assets taken over, smaller exposure to legacy liabilities, depreciable value
Seller of a corporation	often share deal	handing over the legal entity in one piece, a clean break, often more of the negotiated price after tax

Which structure is better for you net depends on legal form, scope and tax position and can only be calculated case by case; the legal bases are in the comparison table above.

Why both sides pull in opposite directions

The buyer's reflex is to keep its attack surface small. Those who may pick what they take over leave behind a past they did not cause and can never fully examine. And what they pay frequently becomes depreciable value that they can set against later profits.

The seller's reflex runs exactly the other way round: hand over the legal entity in one piece, draw a line under the past and — on the sale of a corporation — keep more of the negotiated figure after tax.

Both attitudes are reasonable from the respective position. The mistake is to treat the matter as a dispute that one side must win. It is an economic difference — and economic differences can be priced.

What both variants mean for you net is shown only by a valuation of both structural variants before the negotiation.

First read your own starting position

The legal form of the target company settles a large part of the decision before anyone even argues. In a sole proprietorship there are no shares that could be handed over; the question hardly arises there, as the article Selling a sole proprietorship shows. A GmbH opens both routes and thus invites the whole debate; the structure question therefore stands right at the start when shareholders sell their GmbH. Partnerships lie in between — there the answer depends on the tax situation of the individual partners.

The scope is the second fixed fact. If the entire company changes owner, both routes are conceivable. If only a delimited unit is sold, the seller has to carve it out anyway, as in a carve-out — and this shapes the negotiation before it has begun. How such a carve-out is supported is described under Selling a business unit.

The factors that tip the balance

These considerations rarely point in the same direction. That is exactly why the result is negotiated and not calculated.

How much value is in relationships. If revenue rests on a few large agreements, moving them individually is manageable. If it rests on thousands of small ones or on engagements that customers can withdraw at any time, effort and the risk of attrition rise sharply — and the purchase of the legal entity suddenly becomes attractive for the buyer too.

How much value hangs on registrations. Concessions, permits and licences are often tied to the legal entity that holds them. If they are precisely the reason why the company is worth buying, there is much to be said for leaving the shell untouched.

How clean the past is. Disclosed risks can be quantified and deducted from the price; unknown ones cannot. This is exactly what makes acquirers nervous when they are to take over a legal entity together with its history. A well-documented company with an unremarkable history takes away from the other side a large part of the motive to insist on the other structure.

The tax effect on both sides. For the buyer, the acquisition of the business itself generally creates depreciable volume, a share acquisition does not. For the seller of a corporation, the disposal of shares is frequently the easier result. Neither statement is a rule that survives every set of facts; both belong before tax advice — this is not tax advice. The order of magnitude is shown by the model calculation above: for the private shareholder of a German GmbH, there are around EUR 20 per EUR 100 of gain between the two routes.

Who else has to agree. The most underestimated point: even in a share purchase it is not necessarily the case that no one outside the deal has a say. Financing agreements, leases, franchise terms and large customer contracts often contain change-of-control clauses that bring the same consents back onto the table.

The timetable. Structures that need many individual consents take longer — and time is not free. Those who are under pressure because of illness, a shareholder conflict or a financing deadline may rationally accept the weaker structure in order to sign earlier.

The employees. If a business passes to a new owner, the employment relationships generally follow automatically — in Austria under § 3 AVRAG, with all existing rights and obligations. The idea that one of the two structures allows the buyer to rebuild the workforce is therefore largely an illusion.

A hard difference lies in the procedure: the transfer of a business under § 613a BGB affects only the asset deal. The previous or new employer must notify the affected employees in text form before the transfer – about the time, the reason and the consequences – and each employee can object to the transfer in writing within one month of this notification (§ 613a paras. 5 and 6 BGB). In a share deal both fall away, because the employer remains the same.

The price difference — and how it is bridged

As soon as both sides have calculated, a gap opens. The seller compares what ends up in its account after tax under each variant; the buyer compares what the acquisition costs it after the expected relief. The same figure is worth a different amount to each. That is why a higher gross price can leave the seller worse off than a lower one.

Naming this difference openly achieves more than exchanging arguments about it. Once it has been quantified, several levers are available.

The most direct is a structure premium: whoever enforces their preferred variant pays for it, so that both sides end up roughly where a neutral result would have left them.

If it is in truth less about tax than about risk, it is better to shift the risk than the structure: warranties and indemnities for specifically identified issues, a retention held back for a certain period, or a deferred portion of the purchase price, as represented by a vendor loan.

If the question is whether the business holds together after the handover, part of the price can follow the actual development — the mechanics are described in the earn-out. And where the sticking point is consents that nobody can guarantee, the price can be split into a base amount and a premium for the consents actually granted.

You should know the approximate value of the company before this conversation begins — see What is my company worth?. A first indicative value range based on EBITDA and sector multiples is provided by the free IGCP company valuation calculator (shown after you enter your e-mail address); it does not model the choice between an asset deal and a share deal. And the amount is in any case not the only variable: timing, security and scope of warranties count too, as Why the purchase price is not everything shows.

Hybrid forms between the two structures

The choice is not always binary. If a delimited unit is sold, a widespread answer is: first carve it out into a separate company, then sell its shares. The buyer gets a clean legal entity, the seller keeps what should not go along. Corporate groups achieve the same by selling a subsidiary instead of the parent company.

Elsewhere a share sale is combined with items that were taken out beforehand, or with a property that stays in the seller's ownership and is leased long term. Hybrid forms need professional review and more lead time, but are usually better than forcing one side into an unsuitable structure.

The structure belongs to be nailed down early

The structure question belongs in the letter of intent, not in the drafting of the contract. Those who clarify it early with advice on the company sale on the choice between asset deal and share deal avoid it blowing the timetable at the end. A buyer who assumes one variant for months and then finds that the seller's net calculation works only in the other will renegotiate or walk away. How the acquisition of individual assets works technically is covered in the article Asset deal; the sale of a corporation is described in Selling a GmbH: the process.

What consequences the choice of structure has for the buyer — from the notarial deed to real estate transfer tax on a share acquisition — is set out in Company acquisition: the process; the financing side in Financing a company acquisition.

Frequently asked questions

Who decides which structure is used?

Neither side alone. It is agreed between the parties and in most processes belongs to the first commercial points to be clarified. If there are several interested parties, the seller's negotiating position is considerably stronger than in a one-to-one conversation.

Why does the buyer want a different structure from me?

Because the same transaction produces different results for the two of you. The acquisition of the business gives the buyer relief over time and limits what it inherits. The disposal of shares often leaves a seller from a corporation more after tax and a cleaner break.

Can the difference simply be paid out?

Often yes. If one side's disadvantage can be quantified, it can be reflected in the price or in the payment terms — this is generally quicker than arguing about the right structure.

What if we cannot agree on the structure at all?

Then it is usually about something else: an unresolved risk or an unexamined tax assumption. Finding out which of the two, and addressing it specifically, generally resolves the question. Having both sides reviewed early by their own advisors, before positions harden, is the safest way against a deadlock.

Is one of the two structures better in principle?

No. There is only the structure that fits legal form, scope, contract landscape, history and timetable of the specific case — and what the other side is prepared to pay for it.

---

The terms around asset deal and share deal — from closing accounts through locked box to indemnification — are explained briefly and without jargon in the M&A glossary.

What passes when the business rather than the shares is sold: Selling a business.