Generationsskifte efter reglerne i ABL §§ 34, 35 og 36

Abstrakt

Succession is a rather complex topic and there are many factors that have to be considered in order to successfully implement the optimal Succession. The economic optimization of a Succession requires a numerious considerations and thorough planning. It is therefore very important that the business owner in due time considers whether the Succession are to be within his own family, to an employee or to third parties. According to ABL § 34 and ABL § 35 a transfer of shares by Succession to a defined group of people is a legal option. In such cases it is very important to be aware of the fact, that transfer by Succession only can take place, if the transfer is between physical individuals and that it does not take place in corporate structures that are considered to be "money tanks". A transfer by Succession constitutes a situation that does not result in any tax payable obligation on the basis of the transaction, because the acquirer takes over the transferring parts’ tax position. Share exchange according to ABL § 36 refers to the transaction by which a shareholder will exchange shares in a company (the acquired company) with shares in another company (the receiving company). The tax free share exchange can be done either with or without permission from the tax department. The share exchange will not be considered a real Succession, but represents a restruction model that provides a more optimal corporate structure. Valuation of shares in unlisted companies is done according to different rules depending on how the transfer is made. If the transfer is between persons who are covered by “Boafgiftslovens” rules on gift transfer, and a trade value cannot be determined, the 1982-administrative circular can be used. Using that a so called tax rate for the company can be calculated. The valuation must be in accordance with the 2000 administrative circular, if the transfer takes place between parties with related interests in any other way than above mentioned. As outlined a Succession can be implemented by a number of models, each with its own advantages and disadvantages. It has to be the actual requirements for the specific Succession, that determinds which model to chose. Further more it is important to observe that our conclusion is based on ABL §§ 34, 35 and 36, and consequently does not relate or apply to Succession models concerning transfers of assets or fragmenting and merging of companies.