Partnership GmbH and Co.KG as a legal form? 2 X 7 tips on limited partnerships

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The GmbH and Co.KG is a special form of the pure KG. This legal form also belongs to the partnership. In contrast to the KG, the (sole) general partner and therefore a fully liable partner is not a natural person, but rather a GmbH as a legal person.

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The KG at a glance

Since the regulations of the pure KG apply in the essential points, only the differences are presented below.

  1. Formation / formalities: If a GmbH and Co. KG is to be founded as a new company, the complementary GmbH must first be founded as an independent company (see there). Subsequently, the KG is founded under inclusion of the already existing general partner GmbH.
  2. Liability: There are no changes to the pure KG. In this case, the general partner is also liable with all his assets, the limited partner only with his contractual tribal contribution. In this case, this means that the limited liability company as a general partner is only liable with its corporate assets, ie the shareholders of the GmbH do not bear a liability risk. Therefore the partners of the Komplementär-GmbH are very often also limited partners of the KG.
  3. This constellation achieves a de facto exemption from liability - on the one hand limited to the company assets of the limited liability company and on the other hand to the contributed capital contribution as a limited partner.
  4. Representation: In the case of GmbH and Co. KG, only the managing director of the general partner GmbH may act as authorized representative of the KG. The limited partner is also excluded in this case from the representation and the management.
  5. Costs / Formalities: In addition to the start-up costs for the establishment of the KG, in the case of a new start-up, the capital charge for the founding of the Komplementär-GmbH and the costs associated with the formation of the GmbH (notary, commercial register) must be emphasized.
  6. As regards the running costs, there is only the special feature that a formal annual financial statement must also be drawn up for the company, which results in additional costs.
  7. Financing: For a financing bank it is rather disadvantageous if the general unlimited liability partner in the legal form of a GmbH firmiert. This restriction on liability also applies to any company loans granted by the company. For this reason, in such cases frequently the collateral of the partners of the GmbH is demanded by the bank in additional collateral (for example guarantees).

What is a limited partnership?

The Kommanditgesellschaft (KG) is a partnership with which at least one shareholder is unlimited and at least one shareholder is limited.

  1. Formation / Formalities: At least two shareholders are required to form a limited partnership, one of them acting as general partner (so-called full-time employee) and one as limited partner (so-called partial partner). Only the limited partner is required to have a capital contribution, but for which there is no statutory minimum amount.
  2. Company Agreement: These shareholders in turn form a corresponding company agreement, although no special form is required, ie the conclusion of the company agreement can be made in writing, verbally or through conclusive behavior. However, it is always recommended to use the written form. Unlike the GbR, the KG has to be entered into the Commercial Register (Section A).
  3. Liability: For the liability of the partner, a distinction must be made between the general partner and the limited partner. The general partner, like a sole proprietor or a GbR shareholder, is directly and unrestrictedly liable for debts of the company. The situation is different with the limited partner. If he has made his contractual contribution, a personal liability claim is completely eliminated.
  4. Representation / Management: The representation of the company to the outside, including the assumption of management, is exclusively reserved for the general partner (§ 164 sentence 1 HGB). However, by means of appropriate provisions in the company agreement, the conclusion of certain transactions may be subject to the prior consent of the limited partner.
  5. Costs / Formalities: The running costs of this legal form relate mainly to the areas of bookkeeping and the preparation of annual financial statements. In contrast to the GbR, the costs are usually slightly higher, as the profit distribution is usually somewhat more complicated (for example: advance payments, capital account interest, activity remunerations). As a result of the mandatory registration of the company in the commercial register, there is the obligation to submit a copy of the annual accounts to the relevant commercial register.
  6. Taxation: The KG is an independent taxation entity with regard to turnover and trade tax, ie the company itself owes these tax payments. The profit or loss, on the other hand, is directly subject to individual income tax at the shareholders, whereby the trade tax is pro rata pro rata to the income tax burden of the individual shareholders. In the event of a loss, it must also be noted that the limited partner can only take account of the pro rata losses for tax purposes (§ 15a EStG) up to the amount of his contractual contribution. Excess losses incurred can only be offset with profits in future years and not with other income (for example, from leasing or leasing or non-self-employment).
  7. Financing: In the case of financing, the banks will always examine the economic situation of the general partner in detail, since the latter is liable with all its private assets. As a result, the creditworthiness of the company depends on its economic situation, in addition to the profitability and the possible collateral of the company.

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