Structuring an exit: Share deal vs asset deal

1. Introduction: The Strategic Crossroads of Business Exit

Choosing an exit strategy in the 2026–2027 Dutch landscape requires navigating a period of heightened legal scrutiny. Following the 2025 Enterprise Chamber rulings, business owners face a strategic crossroads between the Share Deal and the Asset Deal. NextAccounting views this choice as a critical financial pivot that dictates tax liability and future risk. We serve as your expert guide to ensure your decision protects your financial legacy and meets all corporate obligations.

2. Defining the Mechanics: What is a Share Deal vs. an Asset Deal?

The technical difference between these structures determines exactly what the buyer acquires. NextAccounting mandates a clear understanding of these paths before entering negotiations to avoid unintended legal entanglements.

The Share Deal: Transferring the Legal Entity

In a share deal, the buyer acquires the shares of the legal entity itself. This means the buyer inherits the company’s entire history, including all rights and historical obligations. The company continues its legal existence without interruption or asset-by-asset transfers.

The Asset Deal: Selecting Assets and Liabilities

The asset deal is defined by “cherry-picking” specific items like machinery, inventory, and goodwill. The buyer selects individual components while liabilities generally remain with the seller unless explicitly transferred. This path offers more control over assumed risks but requires higher administrative effort.

3. The Seller’s Perspective: Tax Implications and Capital Gains

For Dutch DGAs, the 2026 fiscal environment introduces specific cost progressions. NextAccounting highlights that the customary wage has risen to €58,000 for 2026, up from the 2025 threshold of €56,000. These rising operational costs must be factored into your pre-exit valuation.

Shareholders with a substantial interest (Box 2) face a tiered tax system in 2026. A rate of 24.5% applies to the first €67,000, while income above this is taxed at 33%. For holding companies, the Participation Exemption remains a vital tool for tax-exempt capital gains.

For non-BV entities, you must calculate cessation profit (stakingswinst). NextAccounting prioritizes the “pass-through scheme” (doorschuifregeling) as a high-value strategy for internal successions to family or employees. This allows for the strategic deferral of taxes that would otherwise be due immediately.

1. Identify the fair market value (FMV) of all transferred items.
2. Subtract the tax book value from the total sales price.
3. Determine the resulting cessation profit or business profit.
4. Apply the cessation deduction or relevant pass-through schemes.
5. Account for released retirement reserves or annuity premium deductions.

4. The Buyer’s Perspective: Risk, Depreciation, and Loss Carry-forwards

NextAccounting views the Earnings Stripping Rule as a primary driver for deal structure in 2026. This rule limits interest deductions to 30% of EBITDA or a €1 million threshold. Buyers often prefer asset deals to maximize depreciation shields and avoid these limitations.

Asset Step-up and Amortization

Asset deals allow for a “step-up,” where assets are depreciated at fair market value rather than historic cost. Furthermore, acquired goodwill can be amortized over 10 years at a 10% annual rate. This provides a significant tax shield for the buyer’s future profits.

Inheriting Liabilities

A share deal represents an “all-in” risk for the buyer. They inherit all historical tax, legal, and environmental liabilities, including undisclosed potential lawsuits. Consequently, buyers often demand a lower price to compensate for this historical baggage.

Tax Losses (NOLs)

A share deal may allow the buyer to utilize the target company’s carry-forward tax losses. However, Dutch law imposes strict change-of-control limitations. We mandate a thorough review of these losses to ensure they remain available post-acquisition.

5. Nuances by Legal Form: BV, CV, VOF, and Maatschap

Your current legal structure dictates the mandatory mechanics of the transaction. Each form carries distinct liability profiles and registration requirements for the 2026–2027 period.

• Private Limited Company (BV): Requires share transfers via a notary and registration of UBOs in the register.
• General Partnership (VOF) & Sole Proprietorship: These must utilize asset/liability transactions as they lack share capital.
• Limited Partnership (CV): Distinguishes between managing partners (personally liable) and silent partners (liable only for invested capital).
• Professional Partnership (Maatschap): Involves joint liability for shared obligations such as practice space or staff.

6. Due Diligence and Compliance in the 2026–2027 Landscape

Thorough due diligence is the primary risk vector in Dutch M&A. NextAccounting mandates a deep dive into material contracts, specifically looking for change-of-control clauses that could trigger termination.

Employee Rights and the Works Council (OR)

The Works Council holds mandatory consultation rights for entities with 25 or more employees. The 2025 Micro Focus ruling proved that Dutch entities must explicitly show a “balancing of interests.” Failure to provide reasoning for Dutch interests led the court to withdraw the dismissal decision.

ESG and Data Protection (GDPR)

GDPR compliance remains a critical focus during the data room phase. Buyers must review data processing agreements and ensure all environmental permits are valid and transferable. Regulatory penalties for non-compliance in these areas can be severe post-closing.

7. International Considerations: Moving Abroad and Exit Taxes

Shareholders planning to emigrate trigger a Protective Tax Assessment (conserverende aanslag). This taxes the deemed capital gain on shares at the moment of departure. Payment is typically deferred as long as you avoid “prohibited events” like selling the shares.

Immigrating shareholders may receive a step-up to fair market value to avoid double taxation. NextAccounting highlights that the 8-year rule (Passantenregeling) applies specifically to taxpayers with interests in non-Dutch companies. This distinction is vital for temporary residents managing international portfolios.

8. Transaction Documentation and Closing Mechanics

Formalizing your exit involves specific Dutch mechanics, including the “no VAT” rule for business transfers. Under the Transfer of a Going Concern rules, the seller does not charge VAT if the buyer continues the business.

Your documentation suite must include a Letter of Intent (LOI) to establish exclusivity. The final deal is executed via a Share Purchase Agreement (SPA) or Asset Purchase Agreement (APA). Essential closing documents also include the Disclosure Letter and an Escrow Agreement.

Warranties and indemnities allocate discovered risks between the parties. Usually, 10% to 30% of the price is held in escrow to secure these potential claims. Notary fees for these transfers typically range from €500 to €1,500 plus KVK registration.

9. Conclusion: Choosing the Right Path

The ideal structure balances simplicity for the seller against tax efficiency for the buyer. While share deals offer a cleaner exit for owners, asset deals provide vital tax shielding through depreciation. NextAccounting ensures that every tax and legal risk is fully mapped before you sign.

10. How NextAccounting can help you

NextAccounting provides technical tax expertise tailored to the 2026–2027 regulatory environment. We advise on complex Box 2 thresholds, participation exemptions, and the 3% distribution tax risks. Our specialists help you structure deals that minimize liabilities while ensuring full compliance with Works Council requirements. Contact NextAccounting for a personalized consultation to secure your financial future and business legacy.

Sources

• Acquisition Structures: Comparing Share Purchases and Asset Purchases (The Netherlands) | Practical Law
• Best M&A lawyers in the Netherlands (2026) – Dutch law
• Commercial, corporate and M&A in Netherlands – Legal 500
• Corporate income tax | Taxation and businesses – Government.nl
• Corporate/M&A: €50-250 million, Netherlands, Global | Chambers Rankings
• Due Diligence In Dutch M&A Transactions: Legal Risks, Compliance, And Best Practices
• Dutch Supreme Court Rules on Anti-Abuse in Dividend Withholding Tax Exemptions
• Dutch Supreme Court Rulings on the application of the dividend withholding tax exemption in international holding structures – Dirkzwager
• Dutch Supreme Court clarifies anti-abuse rule in dividend tax cases …
• Dutch Supreme Court renders judgments on the dividend withholding tax exemption
• Dutch Tax Budget 2026 – rates and tax credits – Deloitte