FAQ: BUSINESS LAW

What is the difference between selling shares vs selling assets

Sellers usually prefer to sell shares of their business in order to take advantage of the capital gains exemption. Buyers, on the other hand generally prefer to purchase a business’s assets. Proceeding this way minimizes the buyer’s exposure to liabilities and obligations of the business that arose before the sale and to be able to take advantage of tax deductions on depreciable assets.

SHARE SALE

Buyer:

  • Inherits the “history” (liabilities and obligations) of the corporation;

  • Cannot amortize the cost of shares;

  • Shares are not subject to sales tax.

Seller:

  • Can generate capital gains;

  • May take advantage of the $800,000 capital gains exemption;

  • No sales tax on the sale of shares.

ASSET SALE

Buyer:

  • Does not inherit the history of the corporation;

  • Can amortize the cost of depreciable assets;

  • Assets are subject to sales tax.

Seller:

  • May generate capital gains or business income;

  • May not take advantage of the $800,000 capital gains exemption;

  • Sales tax applies on the sale of assets.

What are the consequences of selling shares to a family member?

Transferring a business to one’s children or including a key employee in business management requires careful tax planning. Simply selling issued shares or issuing new shares in the corporation may entail disastrous tax implications, such as:

  • Rendering it impossible for the seller to take advantage of the capital gains exemption;

  • Rendering it impossible for the purchaser of the shares to take advantage of the business loan interest deduction on funds borrowed to purchase the shares;

  • Intensified scrutiny by taxation authorities on transactions between family members (non-arm’s length transactions) to assure that the shares are sold at their fair market value;

  • Deemed year end for the corporation when a majority of the shares are acquired (which may have negative effects on the availability of accumulated losses).

Our lawyers will support you in setting up a tax strategy allowing you to transfer your business to your children or include a key employee in the business management structure all the while reducing your tax burden by avoiding confrontation with taxation authorities.

What are some strategies for asset protection?

In case of litigation or legal disputes, our lawyers can help protect your personal assets against seizure by a potential creditor. 

INCORPORATION

A corporation possesses its own legal personality separate from that of its shareholders. By shielding personal assets from a corporation’s creditors, shareholders obtain asset protection and peace of mind while running a business.

HOLDING  CORPORATION

This strategy allows for the separation of a corporation’s activities into two separate entities: the operating company and the holding company. The operating company handles day-to-day operations of the business while the holding company contains the business’ investments and excess cash. In case of a lawsuit, assets found in the holding company can be protected from court claims.

LOANS BETWEEN CORPORATIONS GUARANTEED BY A MOVABLE HYPOTHEC

This strategy allows for the operating company’s assets to be protected in case of a legal action. Instead of borrowing money from a bank, the operating company borrows working capital from the holding company. In exchange, the operating company grants a hypothec on the universality of its property (trucks, equipment etc.) in favor of the holding company.​

Given that the holding company has a hypothec on the property of the operating company, the property of the latter is protected from seizure by creditors. This is because the hypothec held by the holding company would rank ahead of any other creditor’s rank.

ASSET PROTECTION TRUST (OR PRINCIPAL RESIDENCE TRUST)

This inter vivos trust is created by drafting a private document and then transferring valuable real real estate into it such as a principal residence. Since a trust has a separate legal personality distinct from the person who created it, should a lawsuit occur, creditors will not be able to seize property held in the trust.

This strategy is useful and often recommended for individuals with no mortgage on their home or who have at least $350,000 of equity in their residence.

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