An Austrian GmbH holds a property. A shareholder wishes to acquire it personally and speaks of an internal solution. For the preparation it is crucial that company assets and private interest are considered separately. A familiar structure of participants does not replace an examination of the specific exchange transaction.
Treat the seller as its own asset holder
§ 82 GmbHG regulates, among other things, that shareholders cannot demand the return of their capital contribution, and the limits of their claim to the balance-sheet profit during the existence of the company. [GMBHG-82] No concrete distribution or sales authority is derived from this in the article.
Our editorial recommendation: Compile proof of ownership, the intended purchaser, the participation ratio and the planned consideration in full. A shareholder’s private wish is not documented as an already taken and legally tenable company decision.
Don’t just look at the heading “purchase agreement”
The OGH explains in 2Ob12/26t the comprehensive tying up of assets and distinguishes open from hidden transfers. For the review described there of concealed repayment of contributions, arm’s length conditions and business justification can be relevant. It is also about whether such a transaction would in any case have been concluded with an unrelated third party. [OGH-2OB12-26T]
The decision relates to legal fees, not a house sale. It is used here only as a limited legal prompt for scrutiny. The article does not confirm any transaction and does not automatically declare a favourable price permitted or prohibited.
Describe the entire planned package of consideration
What is the GmbH actually to receive, when and under what conditions? Which further services or arrangements are linked to the sale? Gather these details for the legal and tax advice, rather than transmitting only the large purchase price figure.
A valuation can be an important factual basis. It does not replace every corporate-law review of the transaction. The article names no generally permissible discount and no specific valuation method for this individual case.
An invented discount with later payment
A shareholder wishes to buy the GmbH property for herself. Besides a lower price, a long, hitherto unsecured deferment of payment is envisaged. In the internal discussion only the price is compared with an older valuation report.
The management instead has price, timing, security, further arrangements and the company interest assessed together. A private benefit is not removed from the review by the word “family solution”. Whether the actual arrangement would be permissible remains open until it has been examined in concrete terms.
Relate decision and contract to the same state
Record which actual variant was assessed and which open prerequisites remain. If a material part of the package of consideration then changes, the review is related to the new version. The article does not create a shareholder resolution nor an authorisation of representation.
This is how an internal idea becomes a comprehensible assignment for the selling company. Personal closeness helps in discussions, but it is not proof that the specific transfer of assets complies with the relevant requirements.