Foundation & Co. KG

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The Stiftung & Co. KG is a special form of the limited partnership (KG) under German law and thus a partnership . Above all, it is an instrument to regulate company succession. The interests of the shareholders are bundled and thus the company and its capital are preserved and continuity is guaranteed. The personally liable partner ( general partner ) is not a natural person, but a foundation , usually a foundation affiliated with the company .

founding

There are two ways of founding the company: Either the limited partnership already exists. In this case, the foundation is accepted as a general partner. Or the foundation is set up first, which then sets up the Foundation & Co. KG together with the limited partners.

company

The Stiftung & Co. KG is in the commercial register entered and is a merchant according to the Commercial Code . The company , the legal name, can be a partnership, a factual company or a fantasy company, but it must be “suitable for identifying the businessman and be distinctive” ( Section 18 (1) HGB). You must acc. Section 19, Paragraph 1, No. 3 of the German Commercial Code (HGB) (new version) has the designation “limited partnership” or a “generally understandable abbreviation” of this term (KG) in its name.

Shareholder

The partnership agreement regulates the relationships and rights of the shareholders among one another. The relevant requirements for the KG from the HGB ( § 161 ff) are largely dispositive, i.e. In other words, they can be waived by contractual agreements in the articles of association.

Contribution from the general partner foundation

The foundation is obliged to maintain the basic assets (provided it is not a consumer foundation ). Therefore, the deposit can be dispensed with. In this case, the “performance” of the foundation for the KG is limited to participation in the management.

Contribution of the limited partners

On page of the limited partners , the designated duty deposit the amount that a limited partner has paid into the company. Irrespective of this, the amount of liability entered in the commercial register (obsolete: liability deposit ) states the amount with which the respective limited partner is personally liable. If no mandatory contribution is agreed in the articles of association, it can be assumed that this is identical to the liability amount. With the performance of the compulsory contribution, the limited partner's direct liability expires in the amount of the amount paid.

Managing directors

The Foundation & Co. KG is represented by the Foundation as a general partner . You can, but does not management authority have ( § 164 HGB). If the articles of association so provide, the limited partner can also take on management activities. Otherwise, the managing director of the foundation is also indirectly managing director of the KG. Otherwise, the legal bases are the same as for the KG.

Reasons for a Foundation & Co. KG

Managing directors

External experts can be employed as managing directors of the general partner foundation.

Facilitation of raising capital

Stiftung & Co. KG can expand its capital base by taking on additional limited partners.

Succession planning

Instead of a natural person, the foundation acts as a full member. This ensures that the company will continue as a going concern, because the foundation is "immortal". This is particularly important for family businesses.

Distribution of profits

The distribution of profits by a foundation & Co. KG is based on the provisions of the articles of association. It must be ensured that the foundation does not participate directly in the profit or loss of the KG. However, the KG can make donations to the foundation.

Restructuring / Termination

The shareholders of Stiftung & Co. KG can informally terminate their membership in accordance with § 161 Paragraph 2 in conjunction with § 132 HGB at the end of the respective financial year, with a notice period of six months, unless the articles of association regulate otherwise.

Tax aspects

In terms of income tax law, Stiftung & Co. KG is a partnership . As a partnership, Stiftung & Co. KG is itself neither corporation tax nor income tax , as the Income Tax Act only applies to natural persons. Trade tax only applies to commercial activities. The profit shares of the limited partners - insofar as they are natural persons - are subject to income tax.

Examples

literature

  • Thomas Klinger, Gerhard Brandmüller: Foundations affiliated with companies: law, tax, business administration. Berlin 2014, ISBN 978-3-503-15448-7 .
  • Ines Hävelmann: The Foundation & Co. KG as a company successor . Basics, taxation. Saarbrücken 2006, ISBN 3-86550-675-5 .
  • Arndt Stengel: Foundation and partnership: the participation of a foundation in a partnership under commercial law. Baden-Baden 1993, ISBN 3-7890-2942-4 .
  • Udo A. Delp: The Foundation & Co. KG: a corporate form of legal advisory practice. Heidelberg 1991, ISBN 3-7685-0791-2 .

See also

Web links