2026-10-10 11:57

What is a share deal, and can it save real estate transfer tax?

A share deal is the purchase not of the property itself but of shares in the company that owns it, so the owner recorded in the land register (Grundbuch) does not change. Real estate transfer tax (Grunderwerbsteuer) still arises if even one of the four 90% tests in § 1 GrEStG is met; since 3 July 2026, for a buyer of 90% or more, it arises already at signing. Savings are possible only within narrow limits, and they are paid for with other risks.

The tax arises if any one of four 90% tests is met

The law treats four kinds of share transaction as equivalent to buying land, and any one of them is enough for the tax. Indirect transfers count too: a change in the owners of a parent company can have the same effect as a sale of the shares themselves.

Exhibit 1. Two tests count share transfers over ten years, two have no time limit

GrEStG provision	What is taxed	Period	Who pays the tax
§ 1(2a)	At least 90% of the interests in a partnership pass to new partners	Ten years	The partnership
§ 1(2b)	At least 90% of the shares in a GmbH or other corporation pass to new shareholders	Ten years	The company itself
§ 1(3)	At least 90% of the shares are united in, or pass into, one hand, counting controlling and dependent persons	No time limit	The acquirer and the company
§ 1(3a)	Someone obtains an economic interest of at least 90%, directly or through a chain of companies	No time limit	The holder of the interest and the company

Tax debtors under § 13 nos. 5–8 GrEStG.

The tax is calculated not on the price of the shares but on the value of the property under the Valuation Act (§ 8(2) sentence 1 no. 3 GrEStG). The rate is that of the federal state in which the land lies.

The 2026 reform moved the tax point to signing

Since 3 July 2026 the buyer-based tests take precedence: where § 1(3) or (3a) applies, the rules on changes of shareholders (subsections 2a and 2b) do not (§ 1(3b) GrEStG). For a buyer of 90% or more, the tax therefore arises when the share purchase agreement is signed or, if it is subject to a condition precedent, when the condition is met (§ 14 no. 1 GrEStG). Deals signed before 3 July 2026 and closed later are taxed only under § 1(3) and (3a) in the wording in force on 2 July 2026 (§ 23(29) GrEStG). The company itself is liable for the tax together with the acquirer (§ 13 nos. 5 and 8 GrEStG). The tax office must be notified within one month (§ 19(3) GrEStG), or unwinding the deal will not cancel the tax (§ 16(5) GrEStG).

Saving the tax means leaving over 10% with the seller for years

For no test to be triggered, nobody — together with controlling and dependent persons — may acquire 90% of the shares or of the economic interest. And less than 90% of the shares may pass to new shareholders within ten years. In practice, this means that more than 10% of the shares remain with the previous shareholder for at least ten years, and that a co-investor cannot be dependent on the buyer. Only a tax opinion on the specific transaction can show whether a given structure works.

The saving has a price. With the shares, the buyer takes on the company's entire history — tax, contractual and litigation liabilities — so it is the company, not just the property, that has to be examined. The property stays on the balance sheet at its previous tax book value, and the buyer cannot depreciate whatever was paid above it. The company's tax losses are, as a rule, forfeited if more than 50% of the shares pass to one buyer within five years (§ 8c KStG; see Part 11 of the series German Prime Retail).

The formalities remain. A contract transferring GmbH shares must be notarised (§ 15(3) and (4) GmbHG), and payment may be made only by non-cash means (§ 16a GwG). A foreign company acquiring 90% must first register its beneficial owners in the Transparency Register (§ 20(1) GwG).

Implications for investors

1. Check all four tests, not just your own stake. The tax arises if any one of them is met, counting indirect transfers and related persons — and for a buyer of 90% or more, already at signing.

2. Count the saving together with its price. More than 10% of the shares must stay with the previous shareholder for at least ten years. The buyer also inherits the company's whole history, cannot depreciate what it paid above the property's previous tax book value and, on buying over 50%, as a rule forfeits the company's tax losses.

3. Commission a tax opinion on the specific transaction. Only such an opinion shows whether a structure works. Notify the tax office within one month: otherwise unwinding the deal will not cancel the tax.

What to check:
• Check all four 90% tests, including indirect holdings, related persons and share transfers over the past ten years.
• Determine the date the tax arises: signing, fulfilment of a condition or transfer of the shares.
• Notify the tax office within one month.
• Examine the company itself — taxes, contracts, disputes — and secure the seller's warranties in the agreement.
• Request the property's tax book value and details of the company's tax losses: both affect the price.

Sources: § 1(2a), (2b), (3), (3a), (3b), §§ 8, 13, 14, 16, 19, 23(28), (29) GrEStG as amended by the Act of 29 June 2026 (BGBl. 2026 I No. 197); § 15 GmbHG; §§ 16a, 20 GwG; § 8c KStG; §§ 6, 7 EStG. Legal position as of October 2026.

Photo: Jan-Philipp Thiele / Unsplash

This page is general information and not investment, legal or tax advice.

Ilya Gordon