Various reasons can speak for the transformation of the corporate form in the course of the existence of an entrepreneurial company. Such occasions may result, for example, from corporate or tax advantages. However, in practice the conversion of a company is in principle subject to the legal provisions of the conversion law. The accumulation of shares Amberg Gesellschaftsvermögen is a legal construct that can be used in design practice to implement the conversion of a company outside the conversion right. In individual cases, such a design can lead to noticeable time and cost savings.

1.1. Legal basis

The legal basis for the acquisition is § 738 BGB. Paragraph 1 of this provision specifies that the share of the company assets of a departing member increases to the other members. The basis for this legal construction is the overall hand principle for partnerships. For this reason, the acquisition as a legal consequence of leaving a shareholder is exclusively applicable to partnerships. These include the company civil law (GbR), the open commercial company (OHG), the limited partnership (KG), as well as its special form, the GmbH & Co. KG. On the other hand, for other types of companies, in particular corporations such as the Gesellschaft mit beschränkter Haftung (GmbH) or the Aktiengesellschaft (AG), an increase in the shareholdings as a legal consequence of the departure of a shareholder is not considered.

1.2. Scope of application in design practice

For corporate law, the increase in the company assets of one last remaining shareholder is of particular interest. In this constellation, the acquisition can be used to transfer the company assets to a partner with a different legal form. This is possible on the one hand in a two-party partnership (company with exactly two partners), by the exit of one of the two partners. On the other hand, the departure of all shareholders except for one remaining shareholder makes it possible to use the growth in a multi-member partnership.

However, the accumulation as a legal consequence of the dissolution of a company is only valid if the shareholders have previously concluded a corresponding takeover agreement with regard to the shares in the company assets. In the absence of a takeover agreement, the company concerned enters the stage of liquidation (in particular correction of debts, distribution of surplus among all shareholders, §§ 730 ff. Such a takeover agreement can be made by the shareholders directly in the articles of association or individually agreed in the course of the planned growth or the imminent departure of the shareholder. A continuation clause under the social contract includes a takeover agreement in case of doubt.

1.3. Purpose of growth in design consultancy

As already indicated, the growth does not fall within the scope of the conversion law. Therefore, unlike other conversion methods such as merger or change of legal form, accumulation is not subject to strict formal and procedural rules. This circumstance makes the growth as a design element very attractive and often leads to a noticeable cost and time saving.

2. Legal consequences

If the shareholders of a partnership, in the case of an existing takeover agreement, leave the company except for one remaining shareholder, their shares in the company assets increase to the remaining shareholder. The company dissolved by the departure of the shareholders is hereby terminated; the shares in the company assets existing until the acquisition are immediately destroyed by the acquisition. As a result of the accumulation, the civil property passes by law through universal succession to the remaining shareholder. There is therefore no need for a separate transfer of ownership of the individual assets of the dissolved partnership. In addition, a separate transfer of ownership is already not possible due to the universal succession. This also applies to real estate belonging to the company assets, so that a notarial real estate disposal is not necessary for the transfer of ownership. The accumulation, meanwhile, leads to an inaccuracy of the land register, which must subsequently be corrected. However, from a tax point of view, it must be ensured that the growth with real estate assets is usually subject to real estate transfer tax.

Furthermore, in jurisprudence and specialist literature, the prevailing opinion assumes that the above legal consequences occur not only in the event of the company leaving, taking into account a corresponding takeover agreement. Rather, the civil transfer of the share of the company’s assets to the last shareholder by assignment also leads to the increase of the company’s assets in the latter to the aforementioned legal consequences. In this constellation, too, the above legal consequences apply and the company assets pass directly to the acquirer through a universal succession.

GmbH & Co. KG is a particularly interesting form of company within the framework of the transformation design. Since a GmbH naturally acts as a personally liable partner (complementary), the acquisition can always be used to convert a GmbH & Co. KG into a GmbH outside the conversion right. For this purpose, two different design models can be used.

3.1. The simple growth model

As part of the simple growth model, the existing limited partners of GmbH & Co. KG leave the company. This increases the shares of the retiring limited partners in the assets of the company, according to the aforementioned statements of the last remaining shareholder, Komplementär GmbH. The shareholdings of GmbH & Co. KG are lost as a result of the accumulation, while Komplementär-GmbH becomes the owner of the entire company assets of the terminated GmbH & Co. KG. As a rule, however, the simple growth model cannot be carried out in a yield-control-neutral manner. Therefore, the hidden reserves contained in the limited partnership shares must in principle be subject to income tax by the outgoing shareholders. This applies in particular if the retiring limited partners are simultaneously involved as shareholders in the capital of Komplementär-GmbH. In this case, even a free increase in the limited partnership shares is considered a taxable hidden contribution to the assets of the GmbH.

3.2. The extended growth model

Due to the income-tax weakness of the simple growth model, the so-called extended growth model is often preferred in design practice. For an application of the expanded growth model, a capital increase of Komplementär-GmbH will be carried out. The new shares are taken over by the limited partners against the contribution of their limited shares in the GmbH & Co. KG to be dissolved. The contribution again leads to an increase in the assets of GmbH & Co. KG at Komplementär-GmbH. However, since the retired limited partners have received business shares in Komplementär-GmbH for the contribution of their limited partnership shares, in the opinion of the Finanzverwaltung § 20 UmwStG is applicable to the extended growth model in compliance with the other legal requirements. The applicability of § 20 of the UmwStG can prevent taxation of the hidden reserves contained in the limited partnership shares in this constellation.

One of the legal requirements for the applicability of the extended growth model, however, is, as already mentioned, that the outgoing limited partners receive business shares in Komplementär-GmbH. If this is not desired in the individual case, the use of the extended growth model is excluded.