When discussing the sale of a company, one immediately thinks of selling shares, commonly referred to as a share deal in M&A terminology. This approach, which involves selling the company as a whole, was until recently tax-neutral in Belgium. The introduction of the capital gains tax on shares therefore provides a timely opportunity to remember that another way to structure a business transfer exists: the asset deal, or sale of assets.
Less common but sometimes better suited, it relies on the sale of an autonomous branch of activity. This formula offers specific advantages but also certain constraints that are worth keeping in mind.
Which terminology to use?
The term asset deal is broadly used in M&A (Mergers and Acquisitions) to designate this type of transaction from an economic and contractual standpoint. On the other hand, the sale of a business as a going concern (fonds de commerce) is a concept governed by the Companies Code, targeting all elements necessary for operations (clientele, lease, trade name, etc.). The transfer of a branch of activity applies when a company sells an autonomous division capable of operating independently.
These three concepts are closely related and often used interchangeably, although their legal meanings differ slightly.
When to use this approach?
An asset deal is the right option when the seller wishes to retain certain assets (a real estate property, for example) or when the buyer wants to avoid the liabilities and risks attached to the legal entity. The transaction thus allows the transfer of only what is useful for continuing the business activity.
Setting the price
Pricing is generally based on the value of the transferred elements (equipment, inventory, goodwill) rather than the all-important EBITDA multiple, which has become the standard for share deals. This is an advantage for companies with limited profitability.
Naturally, the selling company receives the sale proceeds; therefore, one must study how to extract those funds if the goal is to transfer them into private wealth.
Tax regime and VAT
For the selling company, the asset sale is taxed at the corporate income tax rate, calculated on the capital gain (the difference between book value and transfer price).
It is worth noting that capital gains and losses offset each other: a loss on inventory can reduce a capital gain on goodwill, for instance. Moreover, if the selling company has tax losses, this tax impact will be neutralized.
For the buyer, the purchased assets can be depreciated like any investment, which is often more advantageous than in a share deal.
Furthermore, an asset deal is exempt from VAT if it covers a universality of goods (a transferred autonomous activity) and if the buyer is a taxable person.
Precision and vigilance
Because contractual freedom prevails, it is essential to clearly specify which assets are included in the sale and which are excluded. What happens to the trade name, receivables, or non-operational assets?
The inventory of assets and stock must be detailed, and the procedures for transferring receivables and liabilities must be clearly established.
The transfer date plays a pivotal role: from this cut-off date, rights and obligations pass to the buyer. Clear communication with customers and suppliers is also essential, as they will be dealing with a new legal entity and will need to adapt their practices (vendor registration, bank details, etc.).
Clear tax and social certificates
To avoid joint liability for tax and social security debts, the seller must provide "clear" certificates (attestations vierges) for direct taxes, VAT, and social security (ONSS). These documents, which should be requested through an experienced professional such as an accountant, secure the transaction.
Conclusion
In conclusion, an asset deal can represent an attractive alternative to a share deal, particularly when the buyer does not wish to take on the risks associated with the target company.
This structure also streamlines the due diligence phase, which can otherwise be heavy and sometimes a deal-breaker. When well-prepared and supported by professionals, it offers a more flexible, secure transaction tailored to the needs of both parties.
(*) M&A or Mergers and Acquisitions is the term used to designate business transfer advisory activities.
Article originally published in La Libre Économique by Tanguy della Faille, Partner at Fondaris, on 16/09/2025. Published/updated version on the Fondaris website with the author's permission.
