Partnership (legal form)
The partnership is a partnership under German law in which members of the liberal professions can join forces to practice their professions . The legal form was created in 1995 with the Partnership Act (PartGG). The partnership is tied to freelance activities and, unlike the commercial partnerships, does not pursue a commercial trade . Members of a partnership can only be natural persons . Mere equity participation is not permitted.
The partnership agreement must be in writing in accordance with (1) of the PartGG . According to (2) PartGG, the partnership agreement must contain:
- the name and seat of the partnership;
- the surname and first name as well as the profession carried out in the partnership and the place of residence of each partner;
- the subject of the partnership.
A certain minimum level of equity is not required by law.
The partnership does not exercise a trade , is therefore not a trading company and can therefore not actually run a company . However, according to PartGG, it has a name. This must contain the name of at least one partner, the addition "and partner" or "partnership" and the job titles of all professions represented in the partnership. First names do not have to be given. Names other than those of the partners may not be included; according to the judgment of the Federal Court of Justice of March 11, 2004 (I ZR 62/01), this prohibition does not apply to other additions such as imaginary names. In addition, certain provisions of the HGB apply accordingly to the naming of the partnership ( Paragraph 2 of the PartGG).
Entry in the partnership register
According to partnership register. The entry or exit of a partner, the change of name or the relocation of the partnership must be registered for entry in the partnership register.(1) PartGG, the partners in the partnership must have the partnership entered in the
Management or external representation
In principle, all partners are entitled and obliged to conduct business, unless otherwise agreed in the partnership agreement. Individual partners can only be excluded from conducting other business in the partnership agreement. Otherwise, the legal relationship between the partners is based on the partnership agreement. The managing director salaries of the partners are not tax deductible as business expenses; they are to be added to the respective partner as advance payment in the tax distribution of profits .
Distribution of profits and losses
The distribution of profit and loss between the partners is regularly regulated in the partnership agreement. If the partnership agreement does not make a statement about this, Sections 110 to 116 (2), Sections 117 to 119 of the Commercial Code shall apply accordingly (Section 6 (3) of the PartGG).
Legal capacity of the partnership
A partnership can acquire rights and enter into liabilities under their name, acquire property and other real rights to land and sue and be sued in court ((2) PartGG in conjunction with HGB).
Liability of the partners
The partners in a partnership - in contrast to a mere office community - are personally liable to the creditors as joint and several debtors for the obligations of the partnership. According to civil law company (GbR).(2) PartGG, in addition to company assets, only those partners who were actually involved in processing an order are liable for professional errors by law. If a partner leaves, he is still liable for the liabilities established up to that point. For liabilities that are not related to the execution of an order (for example the ordering of office supplies), the partners are therefore always jointly and severally liable, as in a
Dissolution of a partnership
A partnership is dissolved
- if it has been received for a certain period of time, by the passage of time,
- if the partners decide to dissolve,
- if insolvency proceedings are opened against the partnership's assets,
- by court decision.
A partner leaves the partnership,
- due to the death of the partner (the partnership agreement can, however, stipulate that the partnership is inheritable to third parties who can be partners),
- by opening insolvency proceedings over his assets,
- by termination of the partner,
- through termination by a private creditor of the partner,
- by resolution of the partner meeting,
- through occurrence of the reasons for the departure agreed in the partnership agreement.
Accounting of the partnership
According to the German Civil Code, the accounts of a company and, in case of doubt, the distribution of profits must take place at the end of each financial year. This accounting obligation is also to be observed in the tax interest. Partnerships can use the excess of operating income over operating expenses as profit . The regulations on the deduction for wear and tear or decrease in substance are to be followed. The acquisition or production costs for non-depreciable assets of fixed assets are only to be considered at the time of the transfer or withdrawal of these assets as business expenses. The non-depreciable assets of the fixed assets are to be recorded in special, continuously maintained registers, stating the date of acquisition or manufacture and the acquisition or manufacturing costs or the value that has taken their place. Non-deductible expenses within the meaning of Paragraph 5 Clause 1 No. 1 to 4, 6b and 7 EStG are to be recorded individually and separately from other operating expenses. As far as these expenses are not excluded from the deduction, they may only be taken into account when determining the profit if they are specifically recorded.
Tax treatment of a partnership
Economic goods that a partner of a partnership uses for the purposes of the partnership belong to the special operating assets of the partner concerned. The partnership is not subject to trade tax if no non-professional persons are involved. A partner in a partnership earns income from independent work from participating in the partnership . It is not the partnership that is liable to income tax , but each individual partner. The partnership is an entrepreneur within the meaning of the Value Added Tax Act . An entrepreneur is obliged to keep records in order to determine the sales tax and the basis for its calculation. When transferring a partnership participation by gift or inheritance to a successor in the inheritance tax , a special tax allowance granted for the operating assets of the partner.
- Acquisition company (Austria)
- Wienand Meilicke, Friedrich Graf von Westphalen, Jürgen Hoffmann, Tobias Lenz, Reinmar Wolff: Partnership Law. Comment. 3rd edition, CHBECK, Munich 2015, ISBN 978-3-406-66809-8 .
- Lutz Michalski , Volker Römermann: Commentary on the Partnership Law. 4th edition, RWS Verlag, Cologne 2014, ISBN 978-3-8145-8169-9 .
- Peter Ulmer , Carsten Schäfer : Society under civil law and partnership. Systematic commentary. 6th edition, CHBECK, Munich 2013, ISBN 978-3-406-64325-5 .
- Michael Wehrheim : The partnership company. Law, tax, business administration. 4th edition, Erich Schmidt Verlag, Berlin 2007, ISBN 978-3-503-10033-0 .
- Law to create partnership companies and to amend other laws (PartGSchG) . In: Federal Law Gazette . Born in 1994 Part 1, No. 48 . Federal Gazette, July 30, 1994, p. 1744-1747 .