Transfer of company: donation of shares to a third party
Verified 01 January 2024 - Legal and Administrative Information Directorate (Prime Minister)
Flat-rate or proportional reduction applied on the basis of a tax calculation (income, value of property, etc.)
A business which participates actively in the conduct of group policy and the control of subsidiaries and provides, where appropriate and purely internally, specific administrative, legal, accounting, financial and real estate services.
Minimum number of persons present or represented for a vote or decision to be valid
Legal situation that third parties cannot ignore and must respect, even if they are not signatories
Natural persons holding more than 25% of the business' capital and/or voting rights. They may also be persons exercising, by any other means, powers of control over the management, administrative or management bodies of the business or its general meeting.
A social part is a title to part of the capital of the business. This business share gives the partner rights enabling him to participate in the life of the company. Thus, the donation of shares means for a partner (the donor) to pass on to a beneficiary the rights which he holds in the capital of the company. Regardless of the legal form of the company, this operation must follow a number of steps.
What applies to you ?
SARL
The system of approval depends on the social form company and recipient of the gift : third-party operator, partner, spouse, ascendant or descendant.
By " third party " means any natural or legal person not associated on the date of the donation.
They may be a former partner, employees or non-associated managers.
The donation of shares to a third party operator is not possible with the consent of the majority of the partners representing at least half of the shares in the company.
The statutes may provide for a larger majority.
Where the approval of members is necessary, it must be obtained at a general meeting.
It has 3 months to answer.
In the absence of a written reply within that period, approval shall be granted.
Please note
if you are married under the legal community or under the division, your spouse's consent to the donation is required.
A donation of shares made without his agreement may be canceled within a period of 2 years from the date of transfer.
The donation contract must be in writing, either by authentic instrument (by a notary), or by private act (between parties only).
The act must count as many copies as parts to the contract.
Each copy must be signed by the parties.
The act must contain certain mandatory particulars :
- Name of parties
- Identity of the business
- Number and description of the shares transmitted (if numbered)
- Value of shares
- Partner Approval Detail
Purpose of the guarantee
Contrary to the sale of the goodwill alone, the donation of shares implies the transfer of the assets, but also liabilities (debts) of the company.
As a donor, you pass on your rights and duties.
The appearance of unknown debts at the time of the transfer is a major risk that the buyer must avoid to ensure the company's sustainability.
By the asset-liability guarantee clause, you undertake to guarantee the accuracy of all information provided to the buyer: company activity, social accounts, customers and suppliers, salary costs, possible participation in other businesses, ongoing disputes, etc.
This guarantee clause allows the purchaser to protect himself against:
- The Discovery of a Liability which had not been reported at the time of the donation (this must be a debt prior to the donation and disclosed after the transfer)
- Incorrect valuation of the asset whose value is ultimately lower than agreed.
If one of these assumptions is confirmed after the donation of the shares, the buyer can activate the guarantee to obtain a compensation on your part.
References to the guarantee clause
The asset-liability guarantee clause shall contain the following information:
- Departure Date of the guarantee: date from which the earlier or later origin of the debt can be assessed
- Duration of the clause: between 3 and 5 years
- Calculation of compensation: the percentage of the debt that you are committing to pay. This percentage may decrease over time.
- Floor Amount Warranty: The amount from which the warranty can be activated
- Ceiling Amount of compensation: the maximum amount to which you are committed. You won't have to pay more than that.
- Implementation arrangements : additional information needed to apply the guarantee (justification of the liability, method of sending the claim, etc.).
Gift established by an act
The recipient of the gift must register the deed of gift with the registration tax service of the beneficiary's domicile.
He must therefore deposit, on the spot or by post, the donation document (in 2 copies) and the payment of registration fees (by check or transfer) within a period of 1 month from the date of the deed of gift.
Who shall I contact
Donation not established by an act
If it is manual donation of securities (without the use of a written document), the recipient must declare the donation received within 1 month from the date of donation:
- or via the online service available in your personal area, under the report section. One instructions for use is at your disposal.
Taxes: access your Special Space
- or by means of Form No 2735 together with the payment of any fees, to be deposited at the registry office of the domicile of the beneficiary
Declaration of manual donation and donation of money
- or by means of Form No 2734 allowing deferred payment of fees, to be deposited at the registry office of the domicile of the beneficiary. This approach is open to manual donations of a value greater than €15,000.
Revelation of a manual donation worth more than €15,000
Who shall I contact
When you make a donation, the tax authority collects a registration fee, a tax called gift tax.
Donation fees are paid by the purchaser. However, you can decide to take them at your expense, the amount of duty shall not be considered as a donation supplement.
To calculate this tax, the tax department of the registration proceeds as follows:
- It takes into account the value of the gift
- He then deducts from this first value the amount of any deductions
- Finally, it applies a tax scale to the value found. This rate varies according to the relationship between the donor and the donee.
The amount of the rebate and the tax rate vary depending on the relationship between the donor (you) and the donee.
Example :
You give a third party your securities of a value of €320,000No, that's the value of the donation. You and the recipient do not share no relation, which has 2 consequences:
- No abatement cannot be deducted
- The scale of taxation shall be 60%
Thus, you or the third party (at your choice) will have to pay a transfer fee equivalent to 60% of €320,000, or €192,000 of rights.
Additional specific discounts are available in 3 special cases.
Pact Dutreil
The transmission of family companies is facilitated by the Dutreil system, which gives the right to partial exemption donation rights, up to 75% of the value of the securities transmitted.
In other words, only a quarter (25%) of the value of the company will be taken into account to calculate the amount of the gift tax.
The Dutreil Pact applies if 4 cumulative conditions are respected:
- You have entered into an agreement with one or more partners collective conservation commitment securities, for a period of at least 2 years. We're talking unilateral commitment if you are a unique partner. This commitment must be in effect on the date of transmission. In addition, it must cover at least 17%financial rights and 34% the voting rights of the business.
- Each recipient of the donation individually commits retain titles for 4 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- One of the beneficiaries or partners signing the collective commitment must exercise its main activity or a position of director in the business during 3 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- The company shall exercise industrial, commercial, craft, liberal or agricultural activity. This condition must be satisfied from the conclusion of the 2-year collective conservation commitment until the end of the 4-year individual conservation commitment by each of the beneficiaries.
The Dutreil scheme also benefits host holding businesses whose main activity is active participation in the conduct of their group's policy. On the other hand, companies which have as their object the management of a movable or immovable property (for example, SCI) are excluded of the device.
Please note
This benefit is combined with the allowance to which the recipient of the gift is entitled, given his relationship with you.
Early transmission
If you have under 70 at the time of transmission, a further reduction of 50% transfer duties apply to the taxable part of the donation.
The mechanism of early transmission is combined with the possible reductions and advantages of the Dutreil Pact.
Specific exemption for employees
In order to facilitate the transfer of very small companies to employees, a system of exemption from gift tax has been introduced.
This advantage takes the form of a abatement of €500,000 on the amount of the donation where all of the following conditions are met:
- You held the securities for at least 2 years. No time limit is required if you have acquired the securities yourself free of charge.
- Beneficiary employees are in apprenticeship or training DTA for at least 2 years and are engaged in full-time work
- Beneficiary employees must keep the securities for at least 5 years
A donation of shares implies a new distribution of shares among the members and therefore an amendment to the articles of association.
The statutory amendment shall be made in 3 steps.
1. Convening of a special general meeting
The decision to amend the articles of association must be voted on and approved by the members meeting in special general meeting (AGE)
If the status change is not approved at the first meeting, the partners are consulted again.
SARL incorporated before 4 August 2005
The decision to amend the articles of association of an LLC must be adopted by the members representing at least 3/4 of the shares.
There's no pitch of quorum required, a minimum number of participants present or represented at the AGE is not required.
SARL incorporated after 4 August 2005
The general meeting may validly deliberate only if the partners present or represented possess at least 1/4 shares (on first notice) and 1/5 of these (on second notice).
If not, a new meeting must be convened within 2 months.
If the quorum is respected, the amendments must then be decided by a majority of 2/3 of the shares held by the members present or represented.
2. Publishing legal announcements in a media
Any amendment to the articles of association must be published in a legal listing support of the department in which your business' headquarters are located.
Publication shall take place within1 month as of the amendment.
The notice of publication must contain the following :
- Name or corporate name
- Legal form
- Share capital
- Social purpose
- Address of the seat
- Place and registration number of SCR: titleContent
- Decision or minutes of the general meeting, dated and signed
- Changes made
This notice must be signed by the manager of the business or by the notary who drafted the document of donation of shares.
3. Declaration of amendment
Finally, the amendment to the Staff Regulations must be declared within the1 month, on the website of the company formalities office :
Please note
Auto-insert at Bodacc (Official Bulletin of Civil and Commercial Advertisements) will make the change enforceable against third parties.
When reporting, you must submit the supporting documents following:
- Copy of the minutes of the amendment of the statutes
- Copy of the updated articles of association: dated and certified as original by the legal representative
- Certificate of publication of the notice in a legal listing support
FYI
If the status change results in a change in beneficial ownership, it must also be declared on the formalities window.
CNS
The system of approval depends on the social form company and recipient of the gift : third-party operator, partner, spouse, ascendant or descendant.
By " third party " means any natural or legal person not associated on the date of the donation.
They may be a former partner, employees or non-associated managers.
The shares may not be transferred between members, to the spouse, to the ascendants and descendants or to third parties only with the consent of all partners.
Any clause to the contrary is not valid.
This rule cannot be circumvented by any derogating clause and also concerns donations, exchanges and the liquidation of a community between spouses.
Where the approval of members is necessary, it must be obtained at a general meeting.
It has 3 months to answer.
In the absence of a written reply within that period, approval shall be granted.
Please note
if you are married under the legal community or under the division, your spouse's consent to the donation is required.
A donation of shares made without his agreement may be canceled within a period of 2 years from the date of transfer.
The donation contract must be in writing, either by authentic instrument (by a notary), or by private act (between parties only).
The act must count as many copies as parts to the contract.
Each copy must be signed by the parties.
The act must contain certain mandatory particulars :
- Name of parties
- Identity of the business
- Number and designation of the shares transferred (if numbered)
- Value of shares
- Partner Approval Detail
Purpose of the guarantee
Contrary to the sale of the goodwill alone, the donation of shares implies the transfer of the assets, but also liabilities (debts) of the company.
As a donor, you give up your rights and duties.
The appearance of unknown debts at the time of the donation is a major risk that the buyer must avoid to ensure the company's sustainability.
By the asset-liability guarantee clause, you undertake to guarantee the accuracy of all information provided to the buyer: company activity, social accounts, customers and suppliers, salary costs, possible participation in other businesses, ongoing disputes, etc.
This guarantee clause allows the purchaser to protect himself against:
- The Discovery of a Liability which had not been reported at the time of the donation (this must be a debt prior to the donation and disclosed after the transfer)
- Incorrect valuation of the asset whose value is ultimately lower than agreed
If one of these assumptions is confirmed after the donation of the shares, the buyer can activate the guarantee to obtain a compensation on your part.
References to the guarantee clause
The asset-liability guarantee clause shall contain the following information:
- Departure Date of the guarantee: date from which the earlier or later origin of the debt can be assessed
- Duration of the clause: between 3 and 5 years
- Calculation of compensation: the percentage of the debt that you are committing to pay. This percentage may decrease over time.
- Floor Amount Warranty: The amount from which the warranty can be activated
- Ceiling Amount of compensation: the maximum amount to which you are committed. You won't have to pay more than that.
- Implementation arrangements : additional information needed to apply the guarantee (justification of the liability, method of sending the claim, etc.).
Gift established by an act
The recipient of the gift must register the deed of gift with the registration tax service of the beneficiary's domicile.
He must therefore deposit, on the spot or by post, the donation document (in 2 copies) and the payment of registration fees (by check or transfer) within a period of 1 month from the date of the deed of gift.
Who shall I contact
Donation not established by an act
If it is manual donation of securities (without the use of a written document), the recipient must declare the donation received within 1 month from the date of donation:
- or via the online service available in your personal area, under the report section. One instructions for use is at your disposal.
Taxes: access your Special Space
- or by means of Form No 2735 together with the payment of any fees, to be deposited at the registry office of the domicile of the beneficiary
Declaration of manual donation and donation of money
- or by means of Form No 2734 allowing deferred payment of fees, to be deposited at the registry office of the domicile of the beneficiary. This approach is open to manual donations of a value greater than €15,000.
Revelation of a manual donation worth more than €15,000
Who shall I contact
When you make a donation, the tax authority collects a registration fee, a tax called gift tax.
Donation fees are paid by the purchaser.
However, you can decide to take them at your expense, the amount of duty shall not be considered as a donation supplement.
To calculate this tax, the tax department of the registration proceeds as follows:
- It takes into account the value of the gift
- He then deducts from this first value the amount of any deductions
- Finally, it applies a tax scale to the value found. This rate varies according to the relationship between the donor and the donee.
The amount of the rebate and the tax rate vary depending on the relationship between the donor (you) and the donee.
Example :
You give a third party your securities of a value of €320,000No, that's the value of the donation. You and the recipient do not share no relation, which has 2 consequences:
- No abatement cannot be deducted
- The scale of taxation shall be 60%
Thus, you or the third party (at your choice) will have to pay a transfer fee equivalent to 60% of €320,000, or €192,000 of rights.
Additional specific discounts are available in 3 special cases.
Pact Dutreil
The transmission of family companies is facilitated by the Dutreil system, which gives the right to partial exemption donation rights, up to 75% of the value of the securities transmitted.
In other words, only a quarter (25%) of the value of the company will be taken into account to calculate the amount of the gift tax.
The Dutreil Pact applies if 4 cumulative conditions are respected:
- You have entered into an agreement with one or more partners collective conservation commitment securities, for a period of at least 2 years. We're talking unilateral commitment if you are a unique partner. This commitment must be in effect on the date of transmission. In addition, it must cover at least 17%financial rights and 34% the voting rights of the business.
- Each recipient of the donation individually commits retain titles for 4 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- One of the beneficiaries or partners signing the collective commitment must exercise its main activity or a position of director in the business during 3 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- The company shall exercise industrial, commercial, craft, liberal or agricultural activity. This condition must be satisfied from the conclusion of the 2-year collective conservation commitment until the end of the 4-year individual conservation commitment by each of the beneficiaries.
The Dutreil scheme also benefits host holding businesses whose main activity is active participation in the conduct of their group's policy. On the other hand, companies which have as their object the management of a movable or immovable property (for example, SCI) are excluded of the device.
Please note
This benefit is combined with the allowance to which the recipient of the gift is entitled, given his relationship with you.
Early transmission
If you have under 70 at the time of transmission, a further reduction of 50% transfer duties apply to the taxable part of the donation.
The mechanism of early transmission is combined with the possible reductions and advantages of the Dutreil Pact.
Specific exemption for employees
In order to facilitate the transfer of very small companies to employees, a system of exemption from gift tax has been introduced.
This advantage takes the form of a abatement of €500,000 on the amount of the donation where all of the following conditions are met:
- You held the securities for at least 2 years. No time limit is required if you have acquired the securities yourself free of charge.
- Beneficiary employees are in apprenticeship or training DTA for at least 2 years and are engaged in full-time work
- Beneficiary employees must keep the securities for at least 5 years
A donation of shares implies a new distribution of shares among the members and therefore an amendment to the articles of association.
The statutory amendment shall be made in 3 steps.
1. Convening of a special general meeting
The decision to amend the articles of association must be voted on and approved by the members meeting in special general meeting (AGE)
If the status change is not approved at the first meeting, the partners are consulted again.
In the case of NCS, any amendment to the statutes shall require the agreement of the unanimity of the members (100%).
However, the statutes may provide for certain decisions to be taken with the agreement of a majority (50 %).
2. Publishing legal announcements in a media
Any amendment to the articles of association must be published in a legal listing support of the department in which your business' headquarters are located.
Publication shall take place within1 month as of the amendment.
The notice of publication must contain the following :
- Name or corporate name
- Legal form
- Share capital
- Social purpose
- Address of the seat
- Place and registration number of SCR: titleContent
- Decision or minutes of the general meeting, dated and signed
- Changes made
This notice must be signed by the manager of the business or by the notary who drafted the document of donation of shares.
3. Declaration of amendment
Finally, the amendment to the Staff Regulations must be declared within the1 month, on the website of the company formalities office :
Please note
Auto-insert at Bodacc (Official Bulletin of Civil and Commercial Advertisements) will make the change enforceable against third parties.
When reporting, you must submit the supporting documents following:
- Copy of the minutes of the amendment of the statutes
- Copy of the updated articles of association: dated and certified as original by the legal representative
- Certificate of publication of the notice in a legal listing support
FYI
If the status change results in a change in beneficial ownership, it must also be declared on the formalities window.
SCS
The system of approval depends on the social form company and recipient of the gift : third-party operator, partner, spouse, ascendant or descendant.
By " third party " means any natural or legal person not associated on the date of the donation.
They may be a former partner, employees or non-associated managers.
The shares may not be transferred between members, their ascendants and their descendants, or to third parties, only with the consent of all partners.
However, the statutes may to make adjustments.
For example, partners may stipulate in the articles of association the following information:
- The shares of the limited partners (who provide the capital) may be freely disposed of between partners.
- The shares of the limited partners may be transferred to third parties foreigners at the businesses, provided you have the consent of all sponsors (responsible for managing CBS) and majority in number and capital of limited partners.
- The shares of a general partner may be transferred in part to a limited partner or to one third at the businesses, provided that the consent of all the general partners and the majority in number and in capital of the general partners is obtained.
Where the approval of members is necessary, it must be obtained at a general meeting.
It has 3 months to answer.
In the absence of a written reply within that period, approval shall be granted.
Please note
if you are married under the legal community or under the division, your spouse's consent to the donation is required.
A donation of shares made without his agreement may be canceled within a period of 2 years from the date of transfer.
The donation contract must be in writing, either by authentic instrument (by a notary), or by private act (between parties only).
The act must count as many copies as parts to the contract.
Each copy must be signed by the parties.
The act must contain certain mandatory particulars :
- Name of parties
- Identity of the business
- Number and designation of the shares transferred (if numbered)
- Valuation of shares
- Partner Approval Detail
Purpose of the guarantee
Contrary to the sale of the goodwill alone, the donation of shares implies the transfer of the assets, but also liabilities (debts) of the company.
As a donor, you give up your rights and duties.
The appearance of unknown debts at the time of the donation is a major risk that the buyer must avoid to ensure the company's sustainability.
By the asset-liability guarantee clause, you undertake to guarantee the accuracy of all information provided to the buyer: company activity, social accounts, customers and suppliers, salary costs, possible participation in other businesses, ongoing disputes, etc.
This guarantee clause allows the purchaser to protect himself against:
- The Discovery of a Liability which had not been reported at the time of the donation (this must be a debt prior to the donation and disclosed after the transfer)
- Incorrect valuation of the asset whose value is ultimately lower than agreed
If one of these assumptions is confirmed after the donation of the shares, the buyer can activate the guarantee to obtain a compensation on your part.
References to the guarantee clause
The asset-liability guarantee clause shall contain the following information:
- Departure Date of the guarantee: date from which the earlier or later origin of the debt can be assessed
- Duration of the clause: between 3 and 5 years
- Calculation of compensation: the percentage of the debt that you are committing to pay. This percentage may decrease over time.
- Floor Amount Warranty: The amount from which the warranty can be activated
- Ceiling Amount of compensation: the maximum amount to which you are committed. You won't have to pay more than that.
- Implementation arrangements : additional information needed to apply the guarantee (justification of the liability, method of sending the claim, etc.).
Gift established by an act
The recipient of the gift must register the deed of gift with the registration tax service of the beneficiary's domicile.
He must therefore deposit, on the spot or by post, the donation document (in 2 copies) and the payment of registration fees (by check or transfer) within a period of 1 month from the date of the deed of gift.
Who shall I contact
Donation not established by an act
If it is manual donation of securities (without the use of a written document), the recipient must declare the donation received within 1 month from the date of donation:
- or via the online service available in your personal area, under the report section. One instructions for use is at your disposal.
Taxes: access your Special Space
- or by means of Form No 2735 together with the payment of any fees, to be deposited at the registry office of the domicile of the beneficiary
Declaration of manual donation and donation of money
- or by means of Form No 2734 allowing deferred payment of fees, to be deposited at the registry office of the domicile of the beneficiary. This approach is open to manual donations of a value greater than €15,000.
Revelation of a manual donation worth more than €15,000
Who shall I contact
When you make a donation, the tax authority collects a registration fee, a tax called gift tax.
Donation fees are paid by the purchaser. However, you can decide to take them at your expense, the amount of duty shall not be considered as a donation supplement.
To calculate this tax, the tax department of the registration proceeds as follows:
- It takes into account the value of the gift
- He then deducts from this first value the amount of any deductions
- Finally, it applies a tax scale to the value found. This rate varies according to the relationship between the donor and the donee.
The amount of the rebate and the tax rate vary depending on the relationship between the donor (you) and the donee.
Example :
You give a third party your securities of a value of €320,000No, that's the value of the donation. You and the recipient do not share no relation, which has 2 consequences:
- No abatement cannot be deducted
- The scale of taxation shall be 60%
Thus, you or the third party (at your choice) will have to pay a transfer fee equivalent to 60% of €320,000, or €192,000 of rights.
Additional specific discounts are available in 3 special cases.
Pact Dutreil
The transmission of family companies is facilitated by the Dutreil system, which gives the right to partial exemption donation rights, up to 75% of the value of the securities transmitted.
In other words, only a quarter (25%) of the value of the company will be taken into account to calculate the amount of the gift tax.
The Dutreil Pact applies if 4 cumulative conditions are respected:
- You have entered into an agreement with one or more partners collective conservation commitment securities, for a period of at least 2 years. We're talking unilateral commitment if you are a unique partner. This commitment must be in effect on the date of transmission. In addition, it must cover at least 17%financial rights and 34% the voting rights of the business.
- Each recipient of the donation individually commits retain titles for 4 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- One of the beneficiaries or partners signing the collective commitment must exercise its main activity or a position of director in the business during 3 years. This period shall begin to run on the expiry of the collective (or unilateral) undertaking.
- The company shall exercise industrial, commercial, craft, liberal or agricultural activity. This condition must be satisfied from the conclusion of the 2-year collective conservation commitment until the end of the 4-year individual conservation commitment by each of the beneficiaries.
The Dutreil scheme also benefits host holding businesses whose main activity is active participation in the conduct of their group's policy. On the other hand, companies which have as their object the management of a movable or immovable property (for example, SCI) are excluded of the device.
Please note
This benefit is combined with the allowance to which the recipient of the gift is entitled, given his relationship with you.
Early transmission
If you have under 70 at the time of transmission, a further reduction of 50% transfer duties apply to the taxable part of the donation.
The mechanism of early transmission is combined with the possible reductions and advantages of the Dutreil Pact.
Specific exemption for employees
In order to facilitate the transfer of very small companies to employees, a system of exemption from gift tax has been introduced.
This advantage takes the form of a abatement of €500,000 on the amount of the donation where all of the following conditions are met:
- You held the securities for at least 2 years. No time limit is required if you have acquired the securities yourself free of charge.
- Beneficiary employees are in apprenticeship or training DTA for at least 2 years and are engaged in full-time work
- Beneficiary employees must keep the securities for at least 5 years
A donation of shares implies a new distribution of shares among the members and therefore an amendment to the articles of association.
The statutory amendment shall be made in 3 steps.
1. Convening of a special general meeting
The decision to amend the articles of association must be voted on and approved by the members meeting in special general meeting (AGE)
If the status change is not approved at the first meeting, the partners are consulted again.
For SCSs, any changes must be decided with the agreement of all general partners and the majority (in number and capital) of the limited partners.
2. Publishing legal announcements in a media
Any amendment to the articles of association must be published in a legal listing support of the department in which your business' headquarters are located.
Publication shall take place within1 month as of the amendment.
The notice of publication must contain the following :
- Name or corporate name
- Legal form
- Share capital
- Social purpose
- Address of the seat
- Place and registration number of SCR: titleContent
- Decision or minutes of the general meeting, dated and signed
- Changes made
This notice must be signed by the manager of the business or by the notary who drafted the document of donation of shares.
3. Declaration of amendment
Finally, the amendment to the Staff Regulations must be declared within the1 month, on the website of the company formalities office :
Please note
Auto-insert at Bodacc (Official Bulletin of Civil and Commercial Advertisements) will make the change enforceable against third parties.
When reporting, you must submit the supporting documents following:
- Copy of the minutes of the amendment of the statutes
- Copy of the updated articles of association: dated and certified as original by the legal representative
- Certificate of publication of the notice in a legal listing support
FYI
If the status change results in a change in beneficial ownership, it must also be declared on the formalities window.
SCI
The system of approval depends on the social form company and recipient of the gift : third-party operator, partner, spouse, ascendant or descendant.
By " third party " means any natural or legal person not associated on the date of the donation.
They may be a former partner, employees or non-associated managers.
The donation of shares to a third party requires still an approval procedure, unanimously or by a majority of the members as provided for in the statutes.
Where the approval of members is necessary, it must be obtained at a general meeting.
It has 6 months to answer.
In the absence of a written reply within that period, approval shall be granted.
Please note
if you are married under the legal community or under the division, your spouse's consent to the donation is required.
A donation of shares made without his agreement may be canceled within a period of 2 years from the date of transfer.
The donation contract must be in writing, either by authentic instrument (by a notary), or by private act (between parties only).
The act must count as many copies as parts to the contract.
Each copy must be signed by the parties.
The act must contain certain mandatory particulars :
- Name of parties
- Identity of the business
- Number and designation of the shares transferred (if numbered)
- Value of shares
- Partner Approval Detail
Purpose of the guarantee
Contrary to the sale of the goodwill alone, the donation of shares implies the transfer of the assets, but also liabilities (debts) of the company.
As a donor, you give up your rights and duties.
The appearance of unknown debts at the time of the donation is a major risk that the buyer must avoid to ensure the company's sustainability.
By the asset-liability guarantee clause, you undertake to guarantee the accuracy of all information provided to the buyer: company activity, social accounts, customers and suppliers, salary costs, possible participation in other businesses, ongoing disputes, etc.
This guarantee clause allows the purchaser to protect himself against:
- The Discovery of a Liability which had not been reported at the time of the donation (this must be a debt prior to the donation and disclosed after the transfer)
- Incorrect valuation of the asset whose value is ultimately lower than agreed.
If one of these assumptions is confirmed after the donation of the shares, the buyer can activate the guarantee to obtain a compensation on your part.
References to the guarantee clause
The asset-liability guarantee clause shall contain the following information:
- Departure Date of the guarantee: date from which the earlier or later origin of the debt can be assessed
- Duration of the clause: between 3 and 5 years
- Calculation of compensation: the percentage of the debt that you are committing to pay. This percentage may decrease over time.
- Floor Amount Warranty: The amount from which the warranty can be activated
- Ceiling Amount of compensation: the maximum amount to which you are committed. You won't have to pay more than that.
- Implementation arrangements : additional information needed to apply the guarantee (justification of the liability, method of sending the claim, etc.).
Gift established by an act
The recipient of the gift must register the deed of gift with the registration tax service of the beneficiary's domicile.
He must therefore deposit, on the spot or by post, the donation document (in 2 copies) and the payment of registration fees (by check or transfer) within a period of 1 month from the date of the deed of gift.
Who shall I contact
Donation not established by an act
If it is manual donation of securities (without the use of a written document), the recipient must declare the donation received within 1 month from the date of donation:
- or via the online service available in your personal area, under the report section. One instructions for use is at your disposal.
Taxes: access your Special Space
- or by means of Form No 2735 together with the payment of any fees, to be deposited at the registry office of the domicile of the beneficiary
Declaration of manual donation and donation of money
- or by means of Form No 2734 allowing deferred payment of fees, to be deposited at the registry office of the domicile of the beneficiary. This approach is open to manual donations of a value greater than €15,000.
Revelation of a manual donation worth more than €15,000
Who shall I contact
When you make a donation, the tax authority collects a registration fee, a tax called gift tax.
Donation fees are paid by the purchaser.
However, you can decide to take them at your expense, the amount of duty shall not be considered as a donation supplement.
To calculate this tax, the tax department of the registration proceeds as follows:
- It takes into account the value of the gift
- He then deducts from this first value the amount of any deductions
- Finally, it applies a tax scale to the value found. This rate varies according to the relationship between the donor and the donee.
The amount of the rebate and the tax rate vary depending on the relationship between the donor (you) and the donee.
Example :
you give to a third party your securities of a value of €320,000No, that's the value of the donation. You and the recipient do not share no relation, which has 2 consequences:
- No abatement cannot be deducted
- The scale of taxation shall be 60%
Thus, you or the third party (at your choice) will have to pay a transfer fee equivalent to 60% of €320,000, or €192,000 of rights.
Additional specific discounts are available in 2 special cases.
Early transmission
If you have under 70 at the time of transmission, a further reduction of 50% transfer duties apply to the taxable part of the donation.
The mechanism of early transmission is combined with the possible reductions and advantages of the Dutreil Pact.
Specific exemption for employees
In order to facilitate the transfer of very small companies to employees, a system of exemption from gift tax has been introduced.
This advantage takes the form of a abatement of €500,000 on the amount of the donation where all of the following conditions are met:
- You held the securities for at least 2 years. No time limit is required if you have acquired the securities yourself free of charge.
- Beneficiary employees are in apprenticeship or training DTA for at least 2 years and are engaged in full-time work
- Beneficiary employees must keep the securities for at least 5 years
A donation of shares implies a new distribution of shares among the members and therefore an amendment to the articles of association.
The statutory amendment shall be made in 3 steps.
1. Convening of a special general meeting
The decision to amend the articles of association must be voted on and approved by the members meeting in special general meeting (AGE)
If the status change is not approved at the first meeting, the partners are consulted again.
For ICS, any amendment to the Statutes requires the agreement of the unanimity of the members (100%).
However, the statutes may provide for certain decisions to be taken with the agreement of a majority (50 %).
2. Publishing legal announcements in a media
Any amendment to the articles of association must be published in a legal listing support of the department in which your business' headquarters are located.
Publication shall take place within 1 month as of the amendment.
The notice of publication must contain the following :
- Name or corporate name
- Legal form
- Share capital
- Social purpose
- Address of the seat
- Place and registration number of SCR: titleContent
- Decision or minutes of the general meeting, dated and signed
- Changes made
This notice must be signed by the manager of the business or by the notary who drafted the document of donation of shares.
3. Declaration of amendment
Finally, the amendment to the Staff Regulations must be declared within the1 month, on the website of the company formalities office :
Please note
Auto-insert at Bodacc (Official Bulletin of Civil and Commercial Advertisements) will make the change enforceable against third parties.
When reporting, you must submit the supporting documents following:
- Copy of the minutes of the amendment of the statutes
- Copy of the updated articles of association: dated and certified as original by the legal representative
- Certificate of publication of the notice in a legal listing support
FYI
If the status change results in a change in beneficial ownership, it must also be declared on the formalities window.
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- Registration Tax Service
SARL Scheme
Tax treatment of capital gains
Pact Dutreil
Exemption from gift tax