In German and Austrian company law , the silent partnership is a special form of an association of persons . It is one of the partnerships , but is not a trading company . Without further agreement, according to the legal conception, the silent society has more of the character of a debt relationship and less that of a social relationship in the narrower sense.
The Swiss company law , however, does not know the institution of the silent partnership. However, it is possible to design a simple society in such a way that it is a silent society, which is largely identical to the institute of the same name in other legal systems.
A silent partnership arises when a natural or legal person participates in the business of another with a capital contribution. The silent participation can be established not only in a trade , but also in a freelance or agricultural operation. The contribution to the silent partnership can also be made in the form of work.
The incorporation and the articles of association are not bound to any particular form. An entry in the commercial register is not required.
The quiet society is an internal society . It is a special form of society under civil law . It is usually not recognizable to an outsider. Something different applies to the silent participation in a stock corporation. The participation of a silent partner must be published here.
Silent partner rights
The rights and obligations of the silent partner are limited exclusively to the internal relationship. The silent partner participates in the loss up to the amount of his contribution ( German Civil Code ( BGB), the contribution can either consist of money or goods or services. He usually receives a share of the profit for the transfer of the contribution. In the external relationship, the silent partner is himself a creditor of the company with profit sharing . Unless otherwise agreed, the silent partner does not take part in the management. He has the right of control like a limited partner and is therefore entitled to audit the annual financial statements . In the event of the company's insolvency , the silent partner assumes the legal status of a creditor.(2) HGB). Often the loss sharing is excluded in the articles of association ( HGB). According to (3) of the
Tax treatment of the silent partnership
Typically silent participation
Treatment of the income with the silent partner
Here the silent partner participates in the profit and, depending on the agreement, in the loss of the company, but not in the company's assets . The profit sharing must be taxed as income from capital assets ( Abs. 1 Nr. 4 EStG) and a possible loss sharing he can acc. Section 20 (9) sentence 1 of the Income Tax Act (EStG) is generally not deducted as income- related expenses . According to the latest case law, it is possible, if specifically agreed, that a negative deposit account can also arise. Thus, losses that go beyond the deposit can reduce the deposit account. Subsequent profits must be used again to top up the deposit account (up to the amount of the conditional deposit).
Treatment of payments to the farmer
The payments to the (typical) silent partner represent operating expenses for the owner of the business . He is obliged to withhold and register the capital gains tax of 25% plus solidarity surcharge.
Atypical silent participation
If the silent partner is granted such extensive property and control rights that he is considered a co-entrepreneur within the meaning of Section 15 (1) No. 2 EStG, one speaks of an atypical silent partnership. The atypical silent partner not only participates in the profits and losses, but also in the company's assets, including the hidden reserves and, if applicable, the goodwill . As an exception, an atypical silent participation can be assumed if the partner does not participate in the loss, in the hidden reserves or in the business value, but can influence the fate of the company like an entrepreneur. This applies in particular to the case when the management of the company is entrusted to a silent partner or when he is granted comprehensive authority to issue instructions (BFH of January 28, 1982 - BStBl II p. 389; BFH / NV 1999 p. 402). He can also contractually be held liable for losses in excess of the amount of his contribution. He has certain say and control rights. As a co-entrepreneur, he earns taxable income from business operations ( (1) No. 2 EStG).
When the atypical quiet company is dissolved
If a co-entrepreneur leaves the co-entrepreneurship in return for a severance payment, he sells his co-entrepreneur share for a fee to the remaining co-entrepreneurs i. S. v. 16 EStG, if the resigning person realizes his claim to dispute. If he leaves without a severance payment, the shares are transferred free of charge i. S. v. Section 6 (3) EStG.
The participation of an atypical silent partner in a GmbH leads to tax advantages with the trade tax compared to a typical silent participation in the GmbH . The GmbH with an atypical silent participation is treated like a partnership for trade tax purposes . In the case of a typical silent partnership, 1/4 of the profit shares of the silent partner would be added to the profit ( No. 1c GewStG).
A silent partnership is to be distinguished from a participation loan. With a silent partnership, the owner and the silent partner pursue a common purpose. A loan is based on pure self-interest on the part of the investor. The delimitation is made on the basis of various characteristics according to the circumstances of the individual case. Against a participation loan speak z. B .:
- Waiver of securities,
- temporal connection to the establishment of the company or high proportion of total capital,
- special control rights (e.g. as limited partner, HGB),
- long minimum term or notice period.
In terms of income tax, the lender generates income from capital assets ( (1) No. 4 EStG).
The silent partnership does not appear to the outside world because it is neither entered in the commercial register nor is it evident from the company name . It is also not required to be published . An entrepreneur who has urgent long-term financial needs and cannot or does not want to satisfy them through a bank can look for a silent partner. With loan financing, interest accrues regardless of the profit situation, but the silent partner only receives a profit share if the result is positive .
- Uwe Blaurock : Manual of Silent Society. 9th edition, Verlag Dr. Otto Schmidt, Cologne 2020, ISBN 978-3-504-33528-1 .