Limited partnership (Germany)
Partnerships are characterized by the fact that there is at least one personally liable partner who has unlimited liability for the company's liabilities with his entire assets . The KG is the only mixed form among partnerships in which, in addition to this or these personally liable partners, there is also a partner who is only liable with his capital contribution . As a rule, there are several shareholders who are each liable with their capital contribution. The partner who is liable with his entire assets is called the general partner , while the partner who is only liable with his liability contribution is the limited partner , after whom the legal form of the KG is named ( (1) half-sentence 2 HGB ).
Its name goes back to the legal form first appearing in Venice in May 1072 under the name Commandery ( Latin commenda , from Latin commendare , "to entrust") , which was recognized by law in Pisa and Florence in 1166 . At least two merchants , the one who is only liable with his capital ( Italian commendatorius ) and the one who is also liable with his private assets ( Italian commendatarius ), combined their capital for the purpose of maritime trade and entrusted the execution to a contractor ( Italian tractator ) to whom they took the ships , Left goods and money. A producer hired a commission agent , who could also be a captain , to sell goods at an overseas location. In March 1673 the Commenda found its way into the French commercial order ( French Ordonnance de Commerce ) as a limited partnership ( French société en commadité ) , in September 1807 the French Commercial Code ( French Code de Commerce ) adopted this legal form. The German ADHGB issued in May 1861 recognized the legal forms of the OHG (Art. 85 ff. ADHGB), limited partnership (Art. 150 ff. ADHGB), their subtype KGaA (Art. 173 ff. ADHGB) and the stock corporation (Art. 207 ff . ADHGB). The limited partnership was considered a trading company and thus a merchant , because it could only be founded to operate a trade .
The formation requires the conclusion of a partnership agreement between at least one general partner and one limited partner. The KG already exists towards third parties when the business commences ( in conjunction with (2) HGB). The KG is to be registered for entry in the commercial register , the trade office and the tax office, usually also with the Chamber of Commerce and Industry .
The company of a KG can be a person, property or mixed company. The addition of a limited partnership or KG is mandatory ( Paragraph 1 No. 3 HGB). Limited partners may be kept in the name as long as the business dealings are not misled about the liability relationships in the company.
The general partners have the same obligations and rights as the partners of a general partnership (OHG) .
- Main advantages:
- Increase in equity capital through limited partners without having to share management or representation with them,
- Raising capital at more favorable interest rates or more favorable conditions than with credit institutions ,
- Company data do not have to be published if at least one natural person is a general partner.
- Major disadvantage:
- Personal and unlimited liability as a fully liable (see #Liability of the shareholders ).
- Main advantages:
- Major disadvantage:
- limited opportunity to participate and control or no control at all.
Liability of the shareholders
Only the general partners of a KG are personally and without limitation jointly and severally liable to the creditors as joint and several debtors for the company's liabilities on an equal footing with the company's assets . If a general partner leaves, he is still liable for the obligations established up to that point.
The limited partners are, insofar as they have made the required limited partner contribution to the company up to the amount of the liability , directly exempt from liability to the company's creditors. As long as a limited partner's contribution is not fully paid in, the limited partner is liable with his private assets up to the amount of the liability amount entered in the commercial register. An outstanding contribution by the limited partner is to be capitalized in the balance sheet . Even after the departure of a partner, he is still liable for the company's liabilities for a period of five years. In the case of limited partners, personal liability is revived after repayment of the contribution up to the amount of the liability.
registration in the commercial register
The partners must have the KG entered in the commercial register. The entry or exit of a partner, a change of company, the purpose of the business or the relocation of the KG must be registered for entry in the commercial register. The liability contribution of at least one partner (limited partner) is entered in the commercial register. The entry in the commercial register is legally binding (declaratory), the KG arises with the conclusion of the articles of association and the start of business for the operation of a commercial trade; so even before entry in the commercial register. The company's liability does not only come into force with the entry in the commercial register, but with the start of business.
The entry for the limitation of liability of the limited partner ( HGB) has further effect . From the time the limited partner joins the company up to their entry, the limited partner is generally fully liable beyond his contribution amount with his entire assets, like a general partner, unless the creditor was aware of the status of partner as a limited partner.
Management / external representation
In principle, only the personally liable partners (general partners) are authorized and obliged to conduct business. Each general partner is solely authorized to represent the company (in conjunction with HGB). In the case of unusual transactions, a partner can object to the actions of another partner ( HGB).
Remuneration that a shareholder receives for his work in the service of the company or for the provision of loans or for the transfer of assets is not tax-deductible as a business expense in accordance with (1) No. 2 EStG ; they are to be allocated to the respective shareholder as advance profit in the tax distribution of profits.
Distribution of profits and losses
The division of profit and loss between the partners is usually regulated in the articles of association. Unless otherwise regulated, according to and Paragraphs 1 and 2 of the German Commercial Code (HGB) the distribution of profit and loss in an appropriate ratio applies , initially after a four percent interest rate on the capital contribution. In practice, every written partnership agreement contains a profit distribution regulation that deviates from the law, so that the legal regulation is a rare exception.
Legal and party capacity
A KG can acquire rights and enter into liabilities under its company name ; it can acquire ownership and other real rights to land and rights equivalent to land and sue and be sued in court. It is therefore legally and party capable.
A KG will be dissolved if
- it has been received for a certain period of time, through the passage of time;
- the shareholders its resolution decide;
- if insolvency proceedings are opened against the company's assets;
- by court decision.
Resignation of a partner
- Death of the partner if he is a general partner; In the event of the death of a limited partner, the KG continues with the heirs , unless otherwise agreed in the articles of association ( HGB),
- Opening of insolvency proceedings against his assets,
- Termination of the shareholder,
- Termination by a private creditor of the partner,
- Resolution of the shareholders' meeting ,
- Occurrence of the reasons for the departure agreed in the articles of association.
A KG is a merchant within the meaning of the Commercial Code. A businessman is obliged to keep books and to make his commercial transactions and the position of his assets visible in these according to the principles of proper bookkeeping ( GoB ). A merchant has to set up a statement (opening balance sheet , balance sheet ) that shows the relationship between his assets and his debts to justify his trade and for the end of each financial year .
Special operating assets
Economic goods that a partner of a KG uses for the purposes of the KG belong to the shareholder's special business assets (SBV); they must be shown in a separate balance sheet. A distinction is made between SBV I and SBV II. SBV I contains all assets that are owned by the partner but used by the company, such as a piece of land that is rented by a partner to the company. Positions that are capitalized or recognized in the SBV II are not used by the company, but they strengthen the position of the partner within the company, for example a loan, with the help of which the partner made his contribution to the company.
The assets of the special balance sheets belong to the total assets (not: total assets) of the company. Profits or losses from the special accounting are allocated to the respective shareholders in advance.
If it is not an asset management company, the KG is usually subject to trade tax. The trade tax to be paid by the KG is no longer a business expense ( (5b ) EStG ) and is partially offset against the income tax of the shareholders. When determining the trade income, an allowance of € 24,500 is deducted ( Paragraph 1 Sentence 1 No. 1 GewStG ).
A partner in a KG earns income from business operations from his participation ( (1) No. 2 EStG). If the KG is only active in asset management, the shareholders earn income from renting and leasing . If the KG only carries out a freelance activity, the shareholder's income is classified as income from self-employment .
It is not the KG but each individual partner that is liable to income tax . However, the profit at the KG level is first determined by way of a uniform and separate determination and then distributed to the shareholders according to the participation. Losses, if they result in a negative capital account or the balance increases, cannot be compensated in accordance with EStG. They are determined separately and can be offset against future profits.
value added tax
When a KG share is transferred by way of a gift or inheritance to a successor, the special regulations for the transfer of business assets apply. Since a suspicion of a violation of the Basic Law, in particular of the principle of equality from GG , is assumed, these special regulations are currently available to the Federal Constitutional Court for review. The court has set a deadline of June 30, 2016, by which time these special regulations must be revised and re-submitted.
GmbH & Co. KG
If the general partner is a GmbH , then the company name is GmbH & Co. KG for legal reasons. As soon as another general partner is a natural person in addition to the GmbH, reference to the GmbH & Co. KG is no longer necessary; the suffix KG is sufficient.
UG (limited liability) & Co. KG
The entrepreneurial company (limited liability) introduced with the law to modernize GmbH law and combat abuse (MoMiG) basically represents a GmbH with a reduced minimum capital. Accordingly, there is also the possibility of a UG (limited liability) & Co. KG. The equity of the general partner can thus in fact be reduced to one euro.
The OHG-KG, in which the general partner consists of one OHG, which in turn can consist of several GmbHs or AGs, is very rare. Then the company must point out the limitation of liability, e.g. B. with GmbH & Co. OHG KG. This form of KG is occasionally chosen when several groups and their subsidiaries pursue common interests in a specialty.
Limited & Co. KG
The general partner of Limited & Co. KG is a British limited company . This has been possible since the Limited is a recognized legal form in Germany. One advantage over the GmbH & Co. KG is the low demand for nominal capital for the establishment of the Limited. On the other hand, there is an increased administrative effort, since the Ltd. must be registered in the United Kingdom and is therefore also subject to the regulations there regarding bookkeeping, accounting, etc. One variant is PLC & Co. KG , in which a public limited company provides the general partner.
ApS & Co. KG
At ApS & Co. KG , the general partner is a Danish Anpartsselskab , comparable to the German GmbH. This has been possible since the ApS has been a recognized legal form in Germany.
Example: To the Mühlen Group
AG & Co. KG
AG & Co. KG is a limited partnership whose general partner is a stock corporation .
Foundation & Co. KG
LLC & Co. KG
With the Capital Investment Code (KAGB) in July 2013, the investment limited partnership was introduced as a subordinate or special legal form of the KG, which in turn comprises the subtypes open ( KAGB) and closed investment partnerships ( KAGB). Unless otherwise specified in the relevant provisions of the KAGB, the provisions of the HGB apply.
|legal form||Number of companies subject to VAT in Germany in 2013|
|Limited partnerships (KG)||17,595|
|Limited liability company & Co. Kommanditgesellschaft (GmbH & Co. KG)||134,754|
|Aktiengesellschaft & Co. Kommanditgesellschaft (AG & Co. KG)||685|
- Limited partnership based on shares (KGaA)
- Limited partnership (Austria)
- Limited partnership (Switzerland)
- Limited partnership (Switzerland)
- Accomenda - the historical archetype
- Hans Hattenhauer, European Legal History , 1999, p. 268 f.
- Levin Goldschmidt , Handbuch des Handelsrechts , Volume I, 1891, p. 255
- Saarbrücken Higher Regional Court , decision of February 25, 2006 , Az. 5 W 42 / 06-14; Operation 2006, 1002, full text
- Christian Kirchner , Worksheet 4: Limited partnership , in: Corporate Law (WS  / 11) , Humboldt-Universität zu Berlin , Berlin 2010, p. 4 ( PDF file ( Memento of the original from January 16, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note .; 126kb)
- See, for example, Matthias Casper : The investment limited partnership according to the KAGB (overview) . In: Hermann Staub (abbreviation): Commercial Code: HGB. Volume 4: §§ 161-237 . 5th edition. De Gruyter, 2015, ISBN 978-3-89949-410-5 , p. 135 ff.