Pool agreements allow shareholders to exercise their voting rights jointly and thus obtain a certain amount of voting rights. For example, you can reach the blocking minority of 25% and thus directly influence the company strategy. In addition, pool contracts also offer tax arrangements in inheritance and gift tax law. Certain tax-advantaging shareholdings can be achieved together with several shareholders.

Inheritance and Gift Tax

Why form a pool contract?

A pool contract is also called a voting contract. “Pool” comes from the English and means “to unite”. Pool agreements bring together several shareholders in order to exercise their voting rights jointly in a specific manner. For example, shareholders can gain blocking minorities or even a majority of votes in a GmbH and thus have a significant influence on the management.

Pool contracts often occur because they can be used as a management tool at a GmbH or AG. In this way, the shareholders can enforce their will more strongly, if not completely, in society. In addition, in family companies, the shares can be bundled and the voting rights can be exercised jointly. In addition, in tax terms, pool agreements mainly make sense in inheritance and gift tax. Because by reaching certain share sizes, tax benefits can be obtained.

2nd Pool Contract: Form and Content

2.1. Contract form of the pool contract

Basically, pool contracts are form-free. This means that it can be concluded verbally. For the purpose of documentation, however, it is always better to record the pool contract in writing. However, if pool contracts include the transfer of shares or other similar agreements, the pool contract must be notarized. In addition, a pool contract should record both the duration of the contract and the eventualities of a termination and deadline.

2.2 Essential contract content of the pool contract: The voting binding

As already mentioned, the shareholders decide on a voting binding with a pool agreement. Voting is the central point of the pool agreement, because the shareholders undertake to exercise their voting rights jointly in a certain way (or to have them exercised by the pool speaker). It must therefore be determined how the votes will decide externally in the future and what strategy should be pursued. The shareholders should agree on central core points of the management from the outset.

2.3 Select pool speakers

After the shareholders have decided to conclude a pool agreement, ideally a pool speaker will now be appointed. The pool speaker represents the pool shareholders in company decisions (for example, at the general meeting). Therefore, the pool spokesperson exercises the voting rights uniformly for all members participating in the pool agreement.

2.4 Limits & Inadmissibility of Pool Contracts

When agreeing pool contracts, certain legal limits must be respected. Thus, the judicially developed ban on secession must be respected. The participation in capital and the voting rights associated with it are inseparable. Therefore, the pooling agreement may not separate the shareholding from its voting rights.

Furthermore, antitrust law and compliance with good morals (§ 138 BGB) must be observed. For example, there is the possibility that concluding a pool contract for a fee could be immoral.

2.5. Pool contracts in the Transparency Register

It should be noted that a pool agreement may meet the requirements for registration in the transparency register and then be displayed in the transparency register accordingly.

2.6. damages in case of breach of the pool agreement

The pool agreement obliges the shareholders to exercise their voting rights in accordance with the pool agreement. If the shareholder were to breach this obligation under the pool agreement, the other shareholders would be entitled to compensation in the pool agreement. However, it is usually difficult to define the amount of the claim for damages, since the effect of voting rights does not directly affect the action of a company. As a substitute, therefore, lump sums for claims for damages are often set out in the pool contract.

In the context of inheritance and gift tax, shares in corporations may be included in the beneficiary assets (§ 13b (1) no. 3 ErbStG) if the share in the corporation is more than 25 %. Beneficiary assets are according to § 13a Abs. 1 ErbStG to 85% tax-free (so-called abatement discount). This means that the share in the corporation can also be tax-free to 85% if it is more than 25% (minimum shareholding)

Now it may happen that the share is only 20%. In such cases, the shares of further shareholders will also be involved if, in addition to the shares which are directly attributable to the decedent or donor, there are also shares of further shareholders, which the decedent or donor can only dispose of jointly with you. Shares which are to be transferred exclusively to other shareholders subject to the same obligation and which are to be uniformly exercised in respect of non-tied members shall also be included in the calculation of the minimum amount.

The minimum participation of 25 % can therefore also be achieved via a pool agreement, which leads to a tax exemption of 85 % for the share in the limited company.

4th Pool Contract in Income Tax Law

In income tax law, pool agreements are only considered if the pool agreement also transfers shares to corporations and not only the voting rights are transferred (temporarily). In such cases, there is a classic sale or transfer of capital shares.