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Share Transfer shall in no way be taken synonymously as the transmission of shares, the two terminologies are quite different from each other and refer to two separate processes of changing the ownership of shares in the company.
Difference Between Share Transfer and Transmission of Share
When it comes to company ownership in Tanzania, it is important to distinguish between share transfer and transmission of shares:
- Share Transfer: A voluntary change of ownership of shares, done through a sale agreement and transfer instrument. This process involves tax clearance and company approval, and must be allowed by the Articles of Association.
- Transmission of Shares: An involuntary change of ownership by operation of law, such as in the event of a shareholder’s death, insolvency, or legal incapacity. In this case, shares pass to heirs, administrators, or receivers.
Understanding this difference is key, especially for foreign investors seeking to buy into a Tanzanian company.
Share Transfer Procedure in Tanzania
Share Transfer Procedure in Tanzania
Tanzanian law recognizes shares as movable property. However, the Articles of Association of each company govern how they can be transferred. The common procedure involves:
A. Notice to Directors
Most private companies restrict transfers to outsiders. A shareholder wishing to sell must first offer shares to existing members. If no one is interested, the shares may be sold to a third party — but only with directors’ approval.
Investor Note: If you are a non-member seeking to acquire shares, legal structuring and director approval are essential. We ensure that the transfer complies with both company rules and Tanzanian law.
B. Members’ Resolution
A resolution is required to approve the transfer. This is normally passed at an Extraordinary General Meeting where members are formally notified.
Whether the shares have been offered to the existing members or outsiders, the members of the company must resolve and agree on the said transfer of shares. This can be done through extra-ordinary meetings of the company, where the members will be notified of the intention of the shareholder(s) to sell the shares, and if agreed, it must be resolved as such.
C. Sale Contract and Transfer Instrument
Once approval is secured:
- The parties sign a Sale Contract confirming the transfer.
- A Share Transfer Instrument is executed by both seller and purchaser, endorsed by the company. Share Transfer Instrument, signifies that the transferor/seller has transferred his shares to the transferee/buyer, the transferee has accepted such transfer, and that the company has consented to and approved the said transfer of shares.
This instrument is crucial; without it, the transfer will not be recognized by the authorities.
Common Risk: Many investors assume that signing a sale contract is enough. Without a properly drafted transfer instrument, BRELA will not update the company records, and the purchaser will not legally become a shareholder.
D. Payment of Capital Gain Tax and Stamp Duty.
Generally, the transfer of property is charged CGT and SDT by the government, and the tax is charged to the person who has earned monetary value from the transfer of property, in this case, the Seller/Transferor, however, the parties are not prohibited to make personal arrangement on who will cover the said CGT.
In Tanzania, the transfer of shares is subject to government taxes:
Stamp Duty (SDT): 1% of the transaction value/Market price, whichever is higher.
Capital Gain Tax (CGT): 10% of the transaction value/Market price, whichever is higher.
The taxes are paid to the Tanzania Revenue Authority (TRA), which issues a Tax Clearance Certificate only after these fees are paid. This is a mandatory step before the Registrar accepts the transfer.
Investor Note: TRA may assess shares at market value, which can differ from the contract price. We ensure accurate assessment and compliance, preventing unexpected costs and delays.
E. Notification to the registrar of companies about Transfer.
Once the transfer has been completed, and the taxes are paid the next step is to notify the company registrar (BRELA) about the transfer of shares, so that the Registrar can update the company information in the registry records, accordingly.
The company has the duty under the law to give notice to the registrar on every change made to the company, and the transfer of shares is one of them. In addition to the above notification, the said changes also have to be shown in the company annual return of the company to be filed with the company registrar (BRELA).
F. Surrender & Issuance of Share Certificate.
A share certificate is issued to the shareholder who has fully paid for his/her shares and it saves as evidence that he is the owner of the fully paid-up shares indicated under the certificate. The share certificate is issued to the shareholders only if the company’s Article of Association has provided for the same.
If the company had issued share certificates to its shareholders, then upon the completion transfer of shares, the holder of the share certificate at the time of transfer i.e. the seller, has to surrender the certificate to the company as he will immediately cease to be a member once the share transfer is done.
Furthermore, upon surrender of the share certificate and completion of the share transfer the company has to issue a new share certificate to the new shareholder acknowledging the transfer of shares and recognize the purchaser as one of its members/shareholders.
Why Foreign Investors Should Seek Legal Assistance
For international investors, acquiring shares in Tanzania is not just a paperwork exercise. Common challenges include:
- Restrictions in Articles of Association against non-member or foreign ownership.
- Rejections by BRELA due to incomplete documentation.
- Delays in obtaining TRA clearance.
- Risks of disputes if documents are not properly executed.
Case Example: Eden Law Chambers recently assisted a European investor acquiring a 40% stake in a Tanzanian private company. Due diligence revealed complications, several shares were unpaid, and the Articles of Association were unclear on whether such shares carried voting rights or how outstanding balances could be handled. This created uncertainty over the investor’s influence and participation in company governance.
We advised on and oversaw an amendment of the Articles, ensuring only fully paid shares carried voting rights and setting clear procedures for unpaid balances. After restructuring, we prepared and executed the Sale Agreement and Share Transfer Instrument, obtained TRA tax clearance, and filed with BRELA.
By addressing these hurdles upfront, we prevented delays, disputes, and possible rejection of filings, safeguarding the investor’s rights and enabling a smooth entry into the company.
How Eden Law Chambers Can Help
At Eden Law Chambers, we assist both local and foreign clients with:
- Reviewing Articles of Association and advising on eligibility for transfer.
- Preparing and executing sale contracts and transfer instruments.
- Managing Capital Gain Tax and Stamp Duty compliance with TRA.
- Filing transfer notices with BRELA and updating company records.
- Facilitating the surrender and issuance of share certificates.
We act as your legal partner on the ground in Tanzania, ensuring smooth, compliant, and timely share transfers so you can focus on your investment, not bureaucracy.
Conclusion: Ensuring a Smooth and Compliant Share Transfer in Tanzania
In conclusion, while the transfer of shares in Tanzania may appear straightforward, the process often involves complex legal, regulatory, and tax considerations that require careful handling. From ensuring compliance with company Articles of Association to obtaining tax clearance and updating official records with BRELA, each step must be executed correctly to safeguard the rights of all parties involved. At Eden Law Chambers, we combine local expertise with international client care to provide seamless support for both local and foreign investors. If you are considering acquiring or transferring shares in Tanzania, our team stands ready to guide you through the process with precision and efficiency.
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Eden Law Chambers assists clients worldwide in acquiring or transferring shares in Tanzania with full legal compliance.
