- · As of 1 January 2025, Articles 684a and 787a of the Swiss Code of Obligations render share transfers in statutory shell companies void ab initio.
- · The new provisions codify and harden prior Federal Supreme Court case law, moving the risk from interpretive ambiguity to explicit statutory nullity.
- · Sellers and fiduciaries face dual jeopardy: Verrechnungssteuer exposure on the transaction and contractual voidness if the company meets the statutory definition.
- · Formal liquidation is no longer merely a tax-efficient alternative to Mantelhandel — it is increasingly the only legally sound one.
For many years, the Swiss treatment of Mantelhandel — the sale of an economically liquidated company via share transfer rather than formal dissolution — occupied a grey zone that experienced advisors navigated with a combination of Federal Supreme Court precedent and careful structuring. The landmark decision 2C_566/2010 established that such transactions would attract Verrechnungssteuer, and subsequent rulings reinforced the tax consequences. But the underlying legal infrastructure remained jurisprudential. Advisors who knew the case law could, at least in principle, map the boundaries.
That era of navigating by case law alone ended on 1 January 2025. The Federal Act on Combating Abusive Bankruptcy brought with it two new provisions — Article 684a for the AG and Article 787a for the GmbH — that transplant the court's long-standing doctrine directly into the Swiss Code of Obligations. The result is a statutory regime with a hard edge: share transfers in companies that meet the statutory definition of a Mantelgesellschaft are now explicitly void ab initio.
This is not a subtle restatement of existing rules. It is a codification that removes the interpretive cushion advisors previously relied upon.
The statutory definition of a shell company under the new provisions is, in practical terms, a three-part fact pattern. First, the company must be economically liquidated or placed substantially in liquid form — meaning its assets consist predominantly of cash or near-cash equivalents, with no ongoing operating business. Second, it must retain its registration in the commercial register despite having ceased meaningful commercial activity. Third, and most critically, its shares must be transferred to a third party rather than the entity being formally wound up through the statutory liquidation procedure.
Where all three conditions are met at the time of the share transfer, the transaction is rendered null and void from the outset. The statute does not leave room for good-faith reliance or subsequent cure. Nichtigkeit von Rechtsgeschäften in Swiss law means exactly what it says: the legal act did not happen.
For fiduciaries and M&A advisors advising on the sale of operationally dormant companies, this creates a material due diligence obligation that did not exist with the same statutory force before.
The tax consequences of Mantelhandel are not new, but they deserve precise restatement in the context of the new regime. When a transaction proceeds — or is attempted — under conditions that meet the statutory definition, the sale proceeds are classified as liquidation gains. At the federal level, Verrechnungssteuer applies. At the cantonal level, ordinary income tax for individuals or profit tax for legal entities applies to the gain realised. The Federal Supreme Court's 2C_566/2010 decision remains the anchor precedent for the withholding tax treatment, and nothing in the 2025 amendments has altered that fiscal logic.
What the amendments add is the contractual nullity layer. A seller could previously face tax exposure while still having completed a legally effective transfer of shares. Under the new regime, the transaction itself may be void, meaning the transfer never legally occurred — a rather uncomfortable position for a buyer who believed they had acquired a company and for a seller who believed they had received consideration for it.
This is what makes 2025 genuinely different in practice. The tax risk was always present and broadly understood. The explicit statutory voidness risk is new, and it operates independently of whether the parties conducted the transaction in good faith or with full disclosure.
The regulatory logic underlying Articles 684a and 787a is not obscure. Swiss company law has always provided a formal liquidation procedure for winding up companies: assets are distributed, creditors are satisfied, and the entity is deleted from the commercial register. Mantelhandel was, at its core, a workaround — a way to avoid the time and administrative cost of formal liquidation by selling the shell to a buyer who either wanted the legal entity for their own purposes or, in less reputable cases, intended to exploit the corporate structure.
The new statute is, in part, a response to the latter category. The Federal Act on Combating Abusive Bankruptcy was not drafted with the legitimate SME seller primarily in mind; it was drafted to close an avenue that had been used in abusive bankruptcy arrangements. The collateral effect on legitimate transactions, however, is real and cannot be set aside. Any SME owner or fiduciary who was considering Mantelhandel as a cost-saving alternative to formal liquidation must now recalibrate that assessment in light of statutory void risk.
Formal liquidation, with all of its procedural requirements, is not merely a tax-efficient alternative. For companies that meet the statutory definition of a Mantelgesellschaft, it is the path that avoids contractual nullity.
The 2025 amendments do not operate in isolation. The Legal Entities Transparency Act, scheduled for implementation in mid-2026, will introduce enhanced beneficial ownership tracking across Swiss legal entities. This further reduces the opacity that made shell company structures useful in the first place. Advisors planning multi-year succession or exit strategies for Swiss SMEs should factor both the current CO amendments and the forthcoming LETA framework into their structuring analysis.
The Commercial Register Ordinance (HRegV) amendments that accompanied the January 2025 changes also tighten the administrative infrastructure around dormant entities, adding another layer of regulatory attention to companies that linger in the register without active operations.
The practical compliance question for any fiduciary or M&A advisor involved in a Swiss share transfer is whether the target company meets the statutory criteria at the point of transfer. This requires a fact-specific analysis: what is the composition of the company's assets, what operational activity has occurred in the recent period, and what is the intent behind the share transfer rather than a formal wind-up?
Prior reliance on case law familiarity is no longer a sufficient basis for advising on these transactions. The statute now governs, and the due diligence standard must reflect that. Engagement with Swiss legal counsel before proceeding with any share transfer involving a dormant or near-dormant entity is not merely prudent — it is, under the new framework, a baseline professional obligation.
Discretion · Precision · Permanence.
The market observation here is straightforward: the Swiss regulatory environment has, over the course of one legislative cycle, transformed Mantelhandel from a grey-zone strategy into a category carrying explicit statutory void risk. Advisors and sellers who proceed without accounting for this shift do so on terms that the statute no longer accommodates.
