Share Sale or Asset Sale in Australia: Liabilities, Tax, Employees and the Lease

Key Takeaways

• In a share sale the buyer takes the company as it stands, with every liability it has ever incurred. In an asset sale the buyer chooses which assets and contracts come across and the company, with its history, stays with the seller.
• An asset sale of a Queensland business generally attracts transfer duty on goodwill, plant, stock and other business assets under the Duties Act 2001 (Qld). A share sale carries no transfer duty on the shares but can attract landholder duty where the company holds Queensland land worth $2 million or more and 50 per cent or more is acquired.
• Where the buyer takes on the staff, an asset sale is usually a transfer of business under the Fair Work Act 2009 (Cth): employment with the seller ends and the buyer re-engages the employees, accrued personal leave and Queensland long service leave follow them and a buyer unrelated to the seller may decline to recognise their service for annual leave and redundancy. In a share sale the employer does not change.
• A lease stays with the company in a share sale, subject to any change of control clause. In an asset sale it has to be assigned to the buyer or a new lease negotiated, and since 1 August 2025 a Queensland landlord must decide a consent request within one month and give reasons if it refuses.
• Tax usually decides which structure the seller wants, because the small business capital gains tax (CGT) concessions and the goods and services tax (GST) going concern exemption each turn on conditions that differ between the two, so have your accountant model both before the price is agreed.

1. 1.How do the two structures compare?
2. 2.Who usually wants a share sale and who wants an asset sale?
3. 3.What happens to the employees?
4. 4.What happens to the lease and the licences?
5. 5.Can duty flip the answer?
6. 6.What should be settled before heads of agreement?
7. 7.Where it depends on your facts
8. 8.Frequently Asked Questions

A share sale transfers the company with everything inside it, known and unknown, while an asset sale lets the buyer pick the assets, contracts and staff it wants and leave the rest with the seller. In Queensland the choice also decides which duty applies under the Duties Act 2001 (Qld), how staff move under the Fair Work Act 2009 (Cth) (Fair Work Act) and whether the lease and the licences need consent. Astris Law in Brisbane compares the two and lists what to settle before heads of agreement.

How do the two structures compare?

Who usually wants a share sale and who wants an asset sale?

A buyer usually prefers an asset sale because it leaves the company's history behind, and a seller usually prefers a share sale because it is one transaction with no contracts to re-paper, no licences to reapply for and no shell to wind up. Often the seller's preference is really a tax preference, because the small business CGT concessions in Division 152 of the Income Tax Assessment Act 1997 (Cth) are tested in the hands of the entity that makes the gain, with extra conditions where the asset sold is a share. A shareholder who meets the basic conditions (aggregated turnover under $2 million or net assets within the $6 million test) may therefore push for a share sale, though eligibility turns on the seller's own figures and needs the accountant's modelling before the price is agreed.

The Australian Taxation Office (ATO) makes the buyer's point in its guide for privately owned groups: "When purchasing shares in an existing business, you may be accepting the risk associated with that company's tax history." Under the director penalty regime a person who becomes a director can be made personally liable for pay as you go (PAYG) withholding, GST and superannuation guarantee charge amounts that fell due before the appointment, unless within 30 days the company pays them in full, appoints an administrator or a small business restructuring practitioner or begins winding up. Resigning within those 30 days does not avoid the liability.

What happens to the employees?

In a share sale nothing changes for them, because the employer is the same company. In an asset sale the seller ends each employee's employment and the buyer re-engages the ones it wants, which is a transfer of business under s 311 of the Fair Work Act where the re-engagement happens within three months, the work is the same or substantially the same and the buyer owns or has the use of assets the seller used in that work. Continuous service then carries across (s 22(5)), as do accrued personal and carer's leave and any enterprise agreement. A buyer that is not an associated entity of the seller may decline to recognise service for annual leave (s 91) and redundancy pay (s 122), in which case the seller pays out the untaken annual leave. Under s 122(3) an employee who rejects an offer from the buyer that is substantially similar, no less favourable overall and recognises prior service is not owed redundancy pay by the seller, so the buyer's offer letters set the seller's exposure. Queensland long service leave accrued with the seller carries over as well, under s 132 of the Industrial Relations Act 2016 (Qld).

What happens to the lease and the licences?

A lease stays with the company in a share sale, subject to any change of control clause. In an asset sale it is assigned, and since 1 August 2025 a request for the landlord's consent under a Queensland lease, whenever it was signed, has been governed by s 142 of the Property Law Act 2023 (Qld): the landlord must not unreasonably withhold consent, must decide within one month of receiving full particulars of the proposal and must give reasons if it refuses. Under the Retail Shop Leases Act 1994 (Qld) the outgoing tenant gives the incoming tenant a disclosure statement at least seven days before the landlord is asked to consent (s 22B) and the landlord gives the incoming tenant its own at least seven days before the assignment (s 22C). Section 50A then releases the outgoing tenant and its guarantors from liability for the incoming tenant's defaults after the assignment, provided the outgoing tenant's own disclosure statement was not defective. On other leases the seller stays liable for the buyer's breaches unless the landlord agrees to a release.

A Queensland food business licence cannot be transferred, so the buyer must be licensed by the council before it opens. A Queensland Building and Construction Commission (QBCC) licence belongs to the licensee and cannot be sold with the business, so an asset buyer needs its own licence before it contracts for any building work. A liquor licence transfers on application under s 113 of the Liquor Act 1992 (Qld), with an interim authority to trade in the meantime.

Can duty flip the answer?

It can. A share sale of a company that owns its premises can attract landholder duty: as the Queensland Revenue Office (QRO) explains, a company holding Queensland land worth $2 million or more is a landholder, and acquiring 50 per cent or more of it, counting related persons' interests, is charged at transfer duty rates on the proportion of the land acquired. An asset buyer budgets for transfer duty instead: QRO treats goodwill, plant, stock, intellectual property, franchise rights and Queensland debts as business assets, and the published scale reaches $5.75 for every $100 above $1 million.

What should be settled before heads of agreement?

1. Which entity sells and which buys, and whether all the shares are going; if not, the shareholders agreement matters as much as the sale contract.
2. What stays behind: debts, disputes, surplus assets and unwanted contracts.
3. Who carries accrued leave, and whether service is recognised for annual leave and redundancy.
4. Which consents are needed, who gives them and what happens if one is refused.
5. The duty and GST assumptions, how the price adjusts for working capital and known exposures and what sits in warranties, indemnities or a retention.

Where it depends on your facts

Three things decide most of this: what sits inside the company (its debts, disputes and tax history), whether the business runs on a lease or a licence the buyer cannot readily take over in its own name and how each side's tax falls once the CGT concessions, the duty and the going concern conditions are run on real numbers. An article can show where each of those pulls, not how hard it pulls on your deal; the weight only shows on your own documents and figures, and reading those is advice rather than general guidance. If the structure is still open, call Jamie Nuich on (07) 3519 5616 and talk it through.

Frequently Asked Questions

Is stamp duty payable on a share sale in Queensland?

No transfer duty, which most people still call stamp duty, is charged on the shares themselves. Landholder duty can apply where the company holds Queensland land worth $2 million or more and 50 per cent or more of it is acquired.

Can a business sale be GST-free?

Yes, as a going concern under s 38-325 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth), if the buyer is registered (or required to be registered) for GST, the parties agree in writing by the day of supply and the seller supplies everything needed to run the enterprise and carries it on until that day. The ATO treats an agreement signed after completion or a business shut before settlement as failing that test.

Do employees transfer automatically in an asset sale?

No. The seller ends their employment and the buyer re-engages the ones it wants, which is usually a transfer of business under the Fair Work Act: their service and accrued personal leave carry across, though a buyer unrelated to the seller may decline to recognise service for annual leave and redundancy pay.

This article is for general information purposes only and does not constitute legal advice and should not be relied on as such. While we take reasonable care to ensure the accuracy of the information provided, we make no representations or warranties as to its completeness, currency or reliability. We accept no liability for any loss or damage arising directly or indirectly from the use of, or reliance on, this website's content. You should always seek professional advice tailored to your specific circumstances before acting on any information in this article. Liability limited by a scheme approved under Professional Standards Legislation.

Astris Law is not a registered tax agent and does not provide tax advice. References to tax law in this article describe the legal framework only. For tax advice specific to your circumstances, consult your registered tax agent or accountant.