Selling a GmbH Share: Notarial Deed, Consent and Process

Selling a GmbH business share in Austria strictly requires a notarial deed — both for the sale agreement and for the transfer itself (Sec. 76 (2) Austrian GmbH Act). Without this form, the transaction is absolutely void, including all payment obligations.

That sets the share sale apart from almost any other contract in business life. And it is only the first of several hurdles erected by the legislator and — more often still — by your own articles of association.

This article covers the sale of individual business shares, for instance when one shareholder exits. The other side — form, review and price on acquisition — is covered under Buying a company interest. For selling the entire company, see Selling a GmbH: process; how we guide the sale is set out under selling a GmbH.

Why does the law require a notarial deed?

The notarial deed is meant to impede trading in GmbH shares and protect the parties from rushed decisions. The form requirement reaches far: it also covers preliminary agreements, options and undertakings regarding future share transfers — attempts to bypass the form through intermediate structures regularly fail.

Practically, this means: involve a notary early and plan for lead time. The deed's cost depends on the transaction value; who bears it is a matter of negotiation.

Germany has a comparable rule: Sec. 15 of the German GmbH Act requires notarisation of both the obligation and the transfer; vis-à-vis the company, the shareholder of record is whoever appears in the shareholder list filed with the commercial register.

Who has to consent to the sale?

That is written in the articles of association — which must be read before any thought of selling.

The transfer of business shares can be tied to the company's consent (a restriction known as Vinkulierung). In Austrian GmbHs with several shareholders, this is the rule, not the exception. Added to this are call rights and pre-emption rights: co-shareholders may take over the share on defined terms before it goes to outsiders — often at a valuation formula fixed in the articles that can deviate from market value.

Ignoring these clauses means negotiating for months with a buyer to whom you may not validly sell at all.

What if the company refuses its consent?

If the share is subject to a transfer restriction and the company withholds consent, that is not necessarily the end. Under Sec. 77 of the Austrian GmbH Act, the commercial court at the company's seat may permit the transfer if the shareholder has paid up the capital contribution in full, sufficient grounds for the refusal do not exist and the transfer can take place without harming the company, the other shareholders and the creditors. The court first hears the managing directors. Even then a counter-move remains: if, within one month of the decision becoming final, the company informs the shareholder by registered letter that it will permit the transfer on the same terms to another acquirer it names, the transfer to the original buyer cannot take effect (Sec. 77 GmbH Act, retrieved 6 Oct 2026).

In practice: the court route is a means of pressure and rarely a timetable. Anyone with a buyer in hand clears the consent before the notary appointment, not after.

Austria: when is the buyer a shareholder as against the company?

In Austria, too, a register decides. Under Sec. 78 (1) GmbH Act, as against the company only a person who appears in the commercial register (Firmenbuch) as a shareholder counts as one. As soon as the transfer of a share is proved to the company, the managing directors must register it with the Firmenbuch without delay; culpably delayed or incorrect filings can make them liable in damages (Sec. 26 GmbH Act).

For the buyer, Sec. 78 (2) GmbH Act is the most important paragraph: for contributions outstanding at the time the transfer is registered, the acquirer is jointly and severally liable with the predecessor. The company's claims against the predecessor lapse five years after the acquirer is registered (Sec. 78 (3) GmbH Act, retrieved 6 Oct 2026). Outstanding contributions and other open obligations therefore belong in the review before the purchase and in a warranty in the contract.

The price is the other side of the review. The basis of any negotiation is a robust company valuation; for a minority stake the discount described in the section below is added.

How does the sale proceed?

Five steps in practice.

First: review the articles — transfer restrictions, call rights, valuation clauses, tag-along rights.

Second: establish the value. The basis is the company value, broken down to the quota; for minority stakes a discount is negotiable. Orientation: What is my company worth?

Third: find a buyer and negotiate terms — internally (co-shareholders) or externally. With external buyers, confidentiality and staged information release are standard, as in any sale process.

Fourth: obtain consents and waivers — shareholder resolution, waiver of call rights, depending on the articles.

Fifth: execute the notarial deed and register the change of shareholder with the Firmenbuch. The notarial deed transfers the share; as against the company, however, the buyer only counts as a shareholder once he appears in the Firmenbuch (Sec. 78 (1) GmbH Act). Only with this chain cleanly executed does the buyer have the full legal position.

Which taxes apply to the sale?

For natural persons in Austria, the capital gain — sale proceeds minus acquisition cost — is subject to the special 27.5 % tax rate (Sec. 27a (1) EStG). Three points are often overlooked in practice: incidental acquisition costs do not count towards the acquisition cost of privately held shares (Sec. 27a (4) no. 2 EStG). GmbH shares cannot be held in a securities account, so capital gains tax is not withheld automatically — the gain has to be declared in the tax return. And for shares of at least one per cent acquired before 1 January 2011, the WKO (retrieved 6 Oct 2026) states that legacy rules apply. Instead of the special rate, ordinary taxation can be elected on application (Sec. 27a (5) EStG), which is only cheaper where income is low. An overview of the tax logic of the whole transaction is given in Taxes on selling a business. A worked example including the holding variant is in Selling a GmbH: what remains after tax; the overall system including the asset-deal comparison in Selling a GmbH: taxes.

Germany: notarisation, shareholder list, good-faith acquisition

For a German GmbH a similar strictness of form applies, but a different register logic. Under Sec. 15 (3) German GmbH Act, the transfer of business shares requires a contract concluded in notarial form; paragraph 4 extends this to the agreement that creates the obligation to transfer in the first place. Unlike in Austria, German law allows a cure here: an agreement of obligation lacking the form becomes valid if a transfer agreement in proper form is concluded later. Paragraph 5 expressly allows the articles of association to tie the transfer to further conditions, in particular to the company's approval — the German legal basis of the Vinkulierung.

Decisive in practice is Sec. 16 GmbH Act. As against the company, only a person entered as holder in the shareholder list filed with the commercial register counts as the holder of a business share. The buyer is therefore not yet at the finish line with the notary appointment: only once the new list is filed with the commercial register can he exercise shareholder rights against the GmbH. If the list is submitted without delay, interim legal acts of the acquirer take effect retroactively.

The same list carries good-faith protection. Under Sec. 16 (3) GmbH Act, an acquirer can validly acquire a share even from a non-entitled person if the seller is entered in the list — unless the list had been incorrect for less than three years and the incorrectness is not attributable to the true holder, the acquirer knew of the lack of entitlement or failed through gross negligence to recognise it, or an objection is attached to the list.

A simple instruction follows for both sides: the current shareholder list in the commercial register belongs at the start of any share negotiation, not at the end. Discrepancies between the list, the articles and the actual history — old transfers, redemptions, capital measures, divisions — are the most common reason a share sale stalls shortly before the notary appointment.

What the share sale triggers in tax terms in Germany

For shares held privately, the size of the holding decides the whole tax regime.

If the seller was directly or indirectly holding at least one per cent of the capital within the last five years, Sec. 17 EStG applies: the gain counts as trade income and is captured under the partial income procedure — 40 per cent remain tax-free, 60 per cent are subject to the personal income tax rate. Sec. 17 (3) EStG additionally grants an allowance of 9,060 euros, relating to the share sold; it is reduced by the amount by which the gain exceeds the corresponding part of 36,100 euros, and runs out completely on larger transactions.

If the holding was permanently below one per cent, income from capital under Sec. 20 (2) EStG remains in point, and with it the flat withholding tax rate of 25 per cent plus solidarity surcharge and, where applicable, church tax.

Where, on the other hand, a corporation holds the shares — the classic holding structure — Sec. 8b KStG applies: the gain is disregarded in determining income, but five per cent of it is treated as non-deductible business expenses. Depending on the trade tax multiplier, an effective burden of around one and a half per cent remains. The advantage is, however, a deferral advantage, not an end state: as soon as the proceeds are distributed from the holding to a natural person, taxation catches up at shareholder level. Anyone wanting to take this route must set it up years before the sale — a short-term contribution before signing regularly triggers blocking periods.

The calculation paths compared are in the article Selling a GmbH: what remains after tax.

How the price of a minority stake forms

A business share is not a proportionally divided company. Anyone selling 20 per cent sells neither control nor liquidity, and both show up in the price. In valuation practice, minority stakes are therefore traded at discounts that can be considerable depending on influence, distribution policy and shareholder structure.

Before any negotiation comes the question whether the articles allow a free price at all. Many contracts contain fixed valuation formulas for call cases — book value, a multiple of average profit, references to outdated methods. Where such a clause applies, market value is simply irrelevant for price setting, and the only room for negotiation lies in payment terms and timing.

The realistic buyer pool for minority stakes is also narrower than for the sale of the entire company: in most cases the co-shareholders, the management or an already invested investor come into question. External buyers typically enter only if they see a path to a majority through tag-along or option rights. Anyone who sells the entire shareholding, by contrast, plays in a considerably broader market — the starting point is the services page selling a GmbH.

This article provides legal orientation and is no substitute for legal or tax advice. Form requirements, consent rules and tax consequences belong with a notary, lawyer and tax advisor before signing.

FAQ

Can I sell a GmbH share without a notary?

No. In Austria, sale agreement and transfer are absolutely void without a notarial deed (Sec. 76 (2) GmbH Act) — even a payment already made then rests on an invalid transaction. In Germany, notarisation is required under Sec. 15 GmbH Act.

What is a Vinkulierung?

A clause in the articles of association tying the transfer of business shares to the consent of the company or the co-shareholders. It protects the shareholder circle from unwanted entrants — and makes the sale process a planning exercise.

Can I sell only part of my business share?

Yes, via the division of the business share — provided the articles allow it. The division and transfer of the partial share are equally subject to the notarial deed requirement and any consent rules. Selling the entire GmbH — not just individual shares — is covered in the guide selling a GmbH.

When is the buyer of a GmbH share really a shareholder?

In Austria, as against the company, only once he appears in the Firmenbuch as a shareholder (Sec. 78 (1) GmbH Act). In Germany, once he is in the shareholder list filed with the commercial register (Sec. 16 (1) GmbH Act); if the amended list is submitted without delay, interim legal acts of the acquirer take effect retroactively. In both countries the notary appointment transfers the share, and the register gives the legal position as against the company.

What can I do if the company refuses its consent to the sale?

For restricted Austrian GmbH shares, the commercial court at the company's seat can permit the transfer if the capital contribution is paid up in full, sufficient grounds for the refusal are lacking and nobody is harmed (Sec. 77 GmbH Act). Within one month of the decision becoming final, the company can name another acquirer on the same terms.

Is the buyer of a GmbH share liable for outstanding contributions?

In Austria, the acquirer is jointly and severally liable with the predecessor for obligations outstanding when the transfer is registered (Sec. 78 (2) GmbH Act). In Germany, under Sec. 16 (2) GmbH Act the acquirer is liable alongside the seller for contribution obligations that are outstanding at the time he is recognised as holder vis-à-vis the company.

How much tax is due on selling a GmbH share in Germany?

With a holding of at least one per cent within the last five years, Sec. 17 EStG applies with the partial income procedure: 60 per cent of the gain is subject to the personal tax rate, 40 per cent remain free. Below one per cent, the flat withholding tax of 25 per cent applies. Where a holding company holds the shares, the gain remains disregarded under Sec. 8b KStG except for five per cent — effectively around one and a half per cent, as long as nothing is distributed.

Selling a company is the most important transaction of an entrepreneur's life. Get independent, discreet guidance — IGCP Capital Partners. → igcp.at

For the Austrian perspective on the same transaction: Selling a GmbH in Austria.

If the company is over-indebted, separate rules apply: Selling a GmbH with debts.

On the special form of the empty company: Selling a GmbH shell.

Our support when selling individual shares is described under selling a stake.

Sources, legal position 6 Oct 2026: GmbH Act Secs 26, 76, 77, 78 (RIS/JUSLINE); EStG Sec. 27a (RIS/JUSLINE); GmbHG Secs 15, 16, EStG Sec. 17, KStG Sec. 8b (gesetze-im-internet.de); WKO.