Compare resolution, voting rights and payment date.
Align the resolution with the articles, shareholdings and agreed succession date.
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Profit allocation in the succession year: distributions, resolutions and capital maintenance
Mag. Bernhard Brandauer, Rechtsanwalt
Profit allocation in the succession year: align annual accounts, shareholder resolutions and capital-maintenance rules.
In the succession year, the transferor may expect a distribution while the successor needs liquidity for the operating business. A payment cannot simply be taken from the company account or inserted into the transfer agreement. The annual accounts, shareholder resolution and capital-maintenance rules must fit together.
This article addresses a GmbH’s profit allocation around the transfer date. It is not a balance-sheet or tax review. The broader succession planning page provides the surrounding framework.
Quick check
Which profit question comes first?
The check separates accounts, resolution and liquidity. It is not a distribution recommendation.
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Has an annual account already been adopted for the relevant year?
A bank balance does not automatically show a distributable balance-sheet profit.
All paths at a glance
Overview of all answers.
Separate current results from adopted profit.
Do not treat a payment as final profit allocation without a reliable basis.
Review the company benefit and its legal basis.
A payment to a shareholder should not be made merely because it appears useful for the succession.
Annual accounts provide the common numerical basis
Section 35 GmbHG assigns adoption of the annual accounts and the decision on balance-sheet profit to the shareholders. Section 193 UGB provides the general framework for preparing annual accounts. The relevant year and date must therefore be identified first.
The bank balance on the transfer date is not the same as balance-sheet profit. Receivables, liabilities, provisions and pending business may affect result and liquidity differently.
Align the transfer date, resolution and shareholders
In a share transfer, it may matter whether the profit-allocation resolution is adopted before or after the transfer and who holds the resulting claim. The transfer agreement and shareholder records should make this allocation traceable.
Section 39 GmbHG contains rules on voting and majorities. The articles-of-association review should therefore precede the final arrangement.
Capital maintenance limits payments to shareholders
Section 82 GmbHG limits the return of contributions and other benefits from the company to shareholders. A payment must therefore be assessed legally, not only arithmetically. Company assets should not finance private succession interests without an appropriate basis.
Section 83 GmbHG addresses restitution of unlawful payments. Purchase price, support, loan repayment and profit distribution must be kept distinct in the handover documents.
Document profit allocation in the handover file
The file should contain the relevant accounts, shareholder resolution, shareholdings, payment instruction and contractual allocation. The first-consultation document list gives a practical starting point.
It should also explain which amounts are not distributed and why. This supports coordination with management, accounting and the financing bank.
Common mistakes with distributions
It is wrong to equate profit, cash and freely available funds. An unclear or unsigned resolution can also be interpreted differently after the ownership change.
The company should not become a private payment agent for the succession. If a payment is purchase price, support, loan repayment or profit, its legal basis must be clear.
Questions about profit allocation during succession
Can the transferor simply distribute profit before the transfer date?
No. The corporate basis, an appropriate resolution and the capital-maintenance rules must be reviewed. The transfer agreement alone is not enough.
Is a high bank balance automatically distributable profit?
No. Cash and balance-sheet profit are different. The accounts and legal basis of the payment are decisive.
Why must purchase price and profit be separated?
They have different legal grounds and consequences. Clear separation prevents later allocation and restitution disputes.
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