Partnership limited by shares (KGaA) – formation, financing, liability & Co

The partnership limited by shares – abbreviation: KGaA – is a relatively unknown form of corporate law and is formed as a hybrid of the conventional limited partnership – short: Kommandite or KG – plus the classic stock corporation – short: AG. Both the Kommandite and the AG belong to the so-called complete companies and are therefore primarily subject to the German Commercial Code (HGB). The limited partnership belongs beyond that however to the partnerships and has no own legal personality. The stock corporation, on the other hand, is probably the best-known corporation of all and is primarily committed to share trading.

The KGaA adopts the best features of both legal forms: it takes a stock corporation as its basic structure and supplements it with the structure of general partners and limited partners that is characteristic of the KG. Thus, the entrepreneurial management – similar to the AG – is divided into different bodies, whereas the liability risk is distributed among at least one personally liable partner and the remaining partners in the amount of their capital contribution. Although the partnership limited by shares is a limited partnership in name and suggests the legal status of a partnership, beware: it is in fact a corporation by virtue of its legal form, including its own legal personality!

Other typical corporations:

• Stock corporation (AG)
• European Company (Societas Europaea, abbreviated to SE)
• Entrepreneurial company / UG (limited liability)
• Limited liability company (GmbH)

Corporation KGaA – Stock Corporation Act §§ 278 – 290 & §§ 161 – 177a German Commercial Code (HGB)

In principle, the legal basis for partnerships limited by shares is the German Stock Corporation Act (Aktiengesetz, AktG), more precisely: paragraphs 278 to 290, where, among other things, the nature of the KGaA is defined. For the legal position of the individual partners, on the other hand, reference is made to the applicable provisions for conventional limited partnerships, which are found in the German Commercial Code (HGB) – sections 161 to 177a.

Excerpt from the law – § 278 AktG:

(1) A partnership limited by shares is a company with its own legal personality in which at least one partner has unlimited liability to the company’s creditors (general partner) and the others have an interest in the share capital divided into shares without being personally liable for the company’s obligations (limited shareholders).
(2) The legal relationship of the general partners among themselves and vis-à-vis the entirety of the limited liability shareholders as well as vis-à-vis third parties, namely the authority of the general partners to manage and represent the partnership, shall be determined in accordance with the provisions of the Commercial Code on limited partnerships.
(3) In all other respects, the provisions of the First Book concerning the stock corporation shall apply mutatis mutandis to the partnership limited by shares, unless otherwise provided for in the following provisions or in the absence of a management board.

Kommanditgesellschaft auf Aktien – International distribution of the legal form

The partnership limited by shares – abbreviated to KGaA – is where the legal form of a stock corporation and the typical features of a limited partnership meet. The resulting hybrid of a corporation and partnership features has so far been rather rare in Germany, although interest has been slowly but steadily increasing since the end of the 1990s. The partnership limited by shares also appears internationally, for example as a “commercial partnership limited by shares” in English-speaking countries or as a “société en commandite par actions” in France.

International distribution of the KGaA:

• Anglophone region: Commercial partnership limited by shares
• Belgium: Commanditaire vennootschap op aandelen (CommVA)
• Denmark: Partnerselskab (P/S) or Kommanditaktieselskab
• Germany: partnership limited by shares (KGaA)
• France: Société en commandite par actions (SCA)
• Italy: Società in accomandita per azioni (S. a. p. A. / S. A. A.)
• Iceland: Samlagshlutafélag (slhf.)
• Netherlands: Commanditaire vennootschap (CV)
• Poland: SpóÅka Komandytowo-Akcyjna (S. K. A.)
• Portugal: Sociedade em Comandita por acções (SCA)
• Spain: Sociedad comanditaria por acciones

Legal form variant Kapitalgesellschaft & Co KGaA – General partner as legal entity

Sometimes different corporations also appear in combination with a partnership limited by shares (KGaA). For example, family businesses occasionally organise themselves as a Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellschaft auf Aktien – in short: GmbH & Co KGaA. In this case, they form a stock corporation in the legal sense – however, the general partner as personally liable shareholder is not just any natural person, but specifically a limited liability company (GmbH). If the general partner is instead embodied by an AG, it is referred to as an AG & Co KGaA, and in the case of a Societas Europaea, as an SE & Co KGaA.

More about the individual hybrid forms:

• GmbH & Co KGaA – see limited liability company (GmbH)
• AG & Co KGaA – see stock corporation (AG)
• SE & Co KGaA – see Societas Europaea (SE)

CEWE Stiftung & Co. KGaA is a special case: In this company, the general partner is embodied by a foundation. In principle, the partnership limited by shares is possible in all conceivable combinations, as GUB Investment Trust KGaA points out as an example.

Continue reading here on the topic of setting up a family foundation:

• Establish a family foundation

Foundation, company name & organs of a KGaA

The formation process of a partnership limited by shares is based on the formation process of stock corporations. Accordingly, a KGaA is considered a legal entity and can only participate in legal transactions through its executive bodies. Unlike the conventional stock corporation, however, this legal form does not provide for a management board as the governing body, so that the governing bodies of a KGaA are limited to the general meeting – consisting of the total of the limited liability shareholders – and the supervisory board. The management authority and the power to represent the company externally are incumbent on the general partners as personally liable partners.

You can find out here how the process of founding an AG works in detail:

• Formation of a public limited company

A personally liable partner can be either a natural person or a legal entity, which limits his liability to the business assets of the corporation and cleverly avoids personal liability. The limited partners or limited shareholders can also be natural persons or legal entities and are in any case only liable to the extent of their respective share contribution.

To set up your KGaA, you also need the following in brief: a tax identification number (tax ID); the confirmation of registration from the Trade Licensing Office; the shareholders’ agreement aka articles of association together with notarial certification; 50,000 euros of share capital; and finally the entry in the Commercial Register under the company name you have chosen plus the legal form suffix “KGaA”.

Examples of KGaA companies:

• Merck KGaA
• MERKUR PRIVATBANK KGaA

Limited partner & general partner: A question of liability

What is a limited partner and general partner? This is a question many people ask themselves when they first hear about the special characteristics of a limited partnership. This is because, unlike all other partnerships, the partners in a limited partnership are clearly divided into general partners and limited partners. Therefore, a single individual or legal entity can never be a general partner and a general partner at the same time.

Usually, general partners are the personally liable partners of a limited partnership. In a partnership limited by shares, too, a distinction is made between general partner and limited partner, the latter being contextually referred to as limited shareholder. The general partner bears the full risk as a general partner: as with the conventional KG, he is also jointly and severally liable, directly and without limitation with business assets and private assets. The liability risk of the limited shareholders, on the other hand, is limited only to the amount of the mandatory sum that they paid in as a limited partner contribution in the form of shares when the KGaA was formed.

Financing & profit distribution

The financing of a KGaA is advantageous compared to the conventional limited partnership, as equity capital can be raised more easily. Overall, as with the AG, a share capital of 50,000 euros or more is required. With regard to the distribution of profits and loss sharing, there are no special regulations compared to the conventional KG: Either the legal principles come into play or corresponding specifications have been anchored in the articles of association. Profits are distributed in principle to 4 per cent of the capital share plus additional profit “in the appropriate relationship”. Losses are also shared appropriately.

Taxes for company & shareholder: separation principle & transparency principle

Like all other forms of corporate law, the partnership limited by shares is generally liable to pay taxes. It is considered an independent tax subject with regard to corporate income tax and trade tax; all natural persons in the partnership are usually subject to income tax.

Due to its hybrid form, however, special regulations apply to the KGaA under tax law: the taxation of the company itself is based on the separation principle, the taxation of the limited liability shareholders is also based on the separation principle and the taxation of the general partners is compulsorily based on the transparency principle. In the case of taxable turnover, the KGaA is always subject to turnover tax.

• Trade tax (GewSt)
• Value added tax (VAT)
• Income tax (ESt)
• Corporate income tax (KSt)

Taxation of the KGaA – separation principle

As a corporation and legal entity, the partnership limited by shares is generally subject to corporate income tax. Insofar as the KGaA exercises its management and/or its registered office in Germany, it is deemed to be subject to unlimited corporate income tax and must pay tax on its entire global income accordingly. In the case of foreign management and/or foreign registered office with domestic income – for example from a domestic permanent establishment – the KGaA is deemed to have limited tax liability.

The profit of a KGaA is determined by means of a comparison of business assets. For the taxable income, on the other hand, a special provision applies with regard to deductible expenses, which is anchored in the German Corporate Income Tax Act (Körperschaftsteuergesetz, KStG) – the corporate income tax of the KGaA therefore only applies where income is attributable to the share capital, i.e.: the profit shares of the limited liability shareholders. The profit shares of the general partners as well as their management remuneration are deducted in advance and can be deducted as operating expenses. They do not come into play in the calculation of the KGaA’s income, but must be taxed by the general partners themselves.

Excerpt from the law – Section 9 (1) no. 1 KStG:

in the case of partnerships limited by shares and comparable corporations, that part of the profit which is distributed to personally liable partners on their contributions not made to the share capital or as remuneration (bonus) for management;

The KGaA must pay trade tax as an entrepreneur, regardless of its hybrid structure. Thus, the determined profit from business operations – increased and decreased by the amounts specified in the Trade Tax Act (GewSt) – is understood as the trade income of the KGaA. The amounts previously calculated for corporate income tax purposes for profit shares and management remuneration of the general partners are now added back to the calculated profit from business operations, thereby ensuring that no amounts escape taxation through trade tax.

Taxation of the limited liability shareholders of the KGaA – separation principle

As natural persons, limited shareholders do not have to pay corporate income tax. Therefore, their profit shares and any management remuneration are settled via the partnership limited by shares itself. Like their counterparts in the conventional limited partnership, they are subject to income tax in the event of a dividend distribution. If they hold limited partnership shares as private assets, they generate income from capital assets in accordance with the German Income Tax Act (EStG).

Taxation of the general partners of the KGaA – separation principle

General partners are taxed like co-entrepreneurs for the purposes of tax law. In this context, they are not to be regarded as co-entrepreneurs, but merely treated as co-entrepreneurs – a small but significant difference… especially in terms of “taxes”! As natural persons, general partners are subject to income tax as normal and must pay tax on their income from business operations.

In contrast to the limited liability shareholders, general partners are required to pay corporate income tax: Their profit shares and any management remuneration are deducted from the KGaA’s income to be determined and charged directly to the general partners. The corresponding amounts must be taxed as part of the income tax return.

Partnership limited by shares (KGaA) – For whom is it worthwhile?

The possibility of easy capital procurement is certainly one of the reasons for founders of new businesses to opt for the formation of a KGaA. In addition, the partnership limited by shares has a high resistance to takeovers, which is why the individual partners can contribute personally and maintain their entrepreneurial commitment despite high capital contributions. The sometimes high liability risk of the general partner can be absorbed by the clever positioning of a GmbH or AG as a personally liable partner.

So who is the partnership limited by shares suitable for? This legal form is worthwhile for start-ups that cannot avoid external financing, but do not want to make any concessions with regard to their decision-making authority as well as the management of their company. The special legal form of the KGaA provides family businesses with a company in which control does not have to be transferred to outside hands as soon as share capital is issued as shares.

Alternatives to the KGaA: Legal forms in Germany

Legal forms – What types of company are there? If you want to start your first company, then choosing the ideal legal form is one of the first steps in the process of setting up a company. Whether it’s a special real estate company or a start-up, I’ve summarized all the types of companies in Germany for you here.

• Legal forms: List

Company types in detail:

• Sole proprietorship
• Registered businessman / registered businesswoman (e. K.)
• Civil law partnership (GbR)
• General partnership (OHG)
• Limited partnership (KG)
• Entrepreneurial company (UG)
• GmbH: Limited liability company
• Real estate GmbH / Asset management GmbH
• Stock corporation (AG)
• Real estate stock corporation (REIT-AG)
• Societas Europaea (SE)
• Foundation / Family Foundation

Der Beitrag Partnership limited by shares (KGaA) – formation, management, liability & Co erschien zuerst auf ℄ Real Estates.

GmbH & Co OHG – formation, financing, liability & Co

The general partnership – OHG for short – is one of the so-called full companies and, as a partnership, is subject to the German Commercial Code (HGB). The formation process for this legal form of company is quite uncomplicated, as it can be formed informally and requires a minimum of only two founding members. It can be formed by both natural persons and legal entities. A maximum number of permissible shareholders is not specified by law.

If the personally liable main shareholder of an OHG appears as a limited liability company (GmbH) or if no natural persons but exclusively legal entities are liable in the company as a whole, a so-called Gesellschaft mit beschränkter Haftung & Compagnie Offene Handelsgesellschaft – in short: GmbH & Co OHG – is formed. But be careful: While the GmbH represents a legal entity by virtue of its legal form, a GmbH & Co OHG does not have its own legal personality and is always considered a partnership!

Other typical partnerships:

• Limited partnership (KG)
• General partnership (OHG)
• Limited Liability Company and Company Limited Partnership(GmbH & Co KG)

Foundation & Company Name

The formation of a GmbH & Co OHG requires at least two persons, with at least one of the two appearing in the form of a GmbH. A common scenario sees both founding members as limited liability companies that join together to form a GmbH & Co OHG for a joint project. In any case, all legal entities of the company act as general partners.

If you are starting from scratch, you first need to set up a limited liability company. To do this, you need the following in a nutshell: a natural or legal person as the founder of the company; a tax identification number (tax ID); the registration confirmation from the trade office; the shareholders’ agreement aka articles of association together with notarial certification; 25,000 euros in share capital; and finally the entry in the commercial register.

You can find out how the process of setting up a GmbH works in detail here:

• Establishment of a limited liability company (GmbH)

You have successfuly founded your GmbH? Then the next step is to set up a limited liability company (Gesellschaft mit beschränkter Haftung & Compagnie Offene Handelsgesellschaft). Since the GmbH & Co OHG is a separate company, you again need a tax ID and must register the company with the trade office. Since one of the partners is a GmbH, the GmbHG also requires a minimum capital of 25,000 euros, in contrast to the conventional OHG. The establishment of articles of association is also mandatory and of course your company needs a suitable company name including the company suffix “GmbH & Co OHG”.

Management & power of representation

Insofar as no other regulation has been established in the shareholders’ agreement, each shareholder of a GmbH & Co OHG has the power of representation in the external relationship. It is possible to agree on a joint representation within the articles of association – and to enter this in the commercial register – or to withdraw the power of representation from individual shareholders. However, this restriction only applies in the internal relationship and is ineffective vis-à-vis third parties, since they cannot view the representation authority of the individual partners.

The same applies to the power to manage: In principle, all shareholders may – and should – act in a managing capacity. Deviations from the legal regulations in the German Commercial Code (HGB) are possible, but only become effective in the external relationship if a corresponding note has been entered in the commercial register and the information is thus accessible to the public. In the absence of a corresponding entry in the commercial register, a transaction is effective even if the shareholder has been excluded from management in the internal relationship.

Excerpt from the law – § 114 HGB:

(1) All shareholders are entitled and obliged to manage the business of the Company.
(2) If the management is assigned to one or more shareholders in the partnership agreement, the other shareholders shall be excluded from the management.

Business letters – offers, order forms, invoices & Co.

In business transactions, the GmbH & Co OHG is bound to a certain presentation. Thus on all business letters – as with the conventional OHG also – information must be given to the legal form addition, the company seat, the responsible register court as well as the commercial register number. Since it concerns with the partners legal entities, a GmbH & CO OHG must indicate additionally the companies of the partners together with legal form addition and further their commercial register number, the responsible register court and the registered office of the companies. The full names of all managing directors and members of the management board – as well as the first name and surname of the chairman of the supervisory board, if applicable – must also be listed on all business letters.

Business correspondence includes all written communications from a company that are specifically adressed to one or more recipients, such as order forms, solicited offers, invoices and payment reminders or dunning letters. General promotional literature and direct mail, on the other hand, are not business letters in form and accordingly do not have to contain any of the above information.

Profit distribution, loss sharing & liability

With regard to the distribution of profits and the sharing of losses, either the statutory principles come into play or corresponding provisions have been anchored in the Articles of Association. Profits are generally distributed “per capita” at 4 percent of the capital share plus additional profit. Loss sharing is also carried out “according to heads”.

A limited liability company & Compagnie General partnership is liable as a company with its business assets. In addition, the individual partners – as with the general partnership – are directly, unlimitedly and jointly and severally liable, i.e.: creditors can not only directly attack the partners independently of the causer, but in case of doubt also raise liability claims beyond the company assets, namely on the private assets of the individual partners.

If, on the other hand, shareholders of a GmbH & Co OHG appear in the form of a limited liability company (GmbH), they are liable as legal entities only to the extent of the GmbH’s capital contribution. The limitation of liability as a legal entity is one of the advantageous features of this legal form of enterprise.

Tax liability of GmbH & Co OHG shareholders – GewSt, USt & ESt / KSt

Like all other legal forms of companies, the Gesellschaft mit beschränkter Haftung & Compagnie Offene Handelsgesellschaft is generally liable to pay taxes. For commercial enterprises with an annual income of more than 24,500 euros, the trade tax obligation applies and, in principle, for all companies, the turnover tax obligation applies, insofar as the GmbH & Co OHG does not only carry out tax-exempt sales.

In addition, partnerships are generally subject to the transparency principle, which states that due to the income tax liability of the individual partners, the payment of income tax for the partnership as a whole is superfluous. Distributed profits are also taxed in the partners’ income tax return as income from business operations. However, this is based on the assumption of natural persons. Income from profits for legal entities, on the other hand, is subject to corporate income tax.

• Trade tax (GewSt)
• Value added tax (VAT)
• Income tax (ESt)
• Corporate income tax (KSt)

Taxes for businesses, all in one list:

• Taxes in Germany

GmbH & Co OHG – For whom is it worthwhile?

A significant advantage of a GmbH & Co OHG is undoubtedly the limitation of liability to the business assets of the GmbH as a personally liable partner. This means that company founders can quickly and easily get off the ground in a team on an equal footing and do not directly risk the existence of their company if an investment turns out to be disadvantageous. In contrast to the GmbH & Co KG, the equal cooperation of the partners is particularly important here and strong hierarchies corresponding to the limited partnership are avoided.

So who is the GmbH & Co OHG suitable for? This legal form is worthwhile for start-ups who would like to set up their business as a partnership without having to forego the special liability restrictions of a GmbH. A GmbH & Co OHG is also conceivable as an asset-managing company and for family businesses.

Alternatives to the GmbH & Co OHG: Legal forms in Germany

Legal forms – What types of company are there? If you want to start your first company, then choosing the ideal legal form is one of the first steps in the process of setting up a company. Whether it’s a special real estate company or a start-up, I’ve summarized all the types of companies in Germany for you here.

• Legal forms: List

Company types in detail:

• Sole proprietorship
• Registered businessman / registered businesswoman (e. K.)
• Civil law partnership (GbR)
• General partnership (OHG)
• Limited partnership (KG)
• Entrepreneurial company (UG)
• GmbH: Limited liability company
• Real estate GmbH / Asset management GmbH
• Stock corporation (AG)
• Real estate stock corporation (REIT-AG)
• Societas Europaea (SE)
• Foundation / Family Foundation

Der Beitrag GmbH & Co OHG – formation, management, liability & Co erschien zuerst auf ℄ Real Estates.

Limited partnership: formation, advantages and disadvantages

In the following, you will find out everything you need to know about setting up a KG. How do you become a partner in a KG? When is the limited partner liable? How is the general partner liable? What are the advantages? What are the disadvantages? How do I set up a company? What is a company? You will get an answer to all these questions and more – explained simply and quickly. Plus everything you need to know about taxes in Germany and real estate trading.

If you’re considering forming a limited partnership, the first thing you need to know about is the formation process: Who can form what exactly, when, and to how many… what are the differences and similarities between the various business legal forms? It is equally important to know the advantages and disadvantages of a KG: From profit distribution to saving taxes – an overview of the seven most important founding criteria for you.

What are the founding criteria?

1. Number of shareholders
2. Management
3. Foundation
4. Company name
5. Funding
6. Liability
7. Profit distribution

Learn everything important about it here! In addition, you will find all German types of companies and legal forms, as well as tips on how to start a company, including the special case of real estate GmbH, family foundation & Co.

Partnership KG: Management according to HGB

In the entrepreneurial world, there are many different forms of business you can choose from. They are roughly divided into two categories, namely sole proprietorship and companies, which in turn are divided into incomplete companies – these include dormant companies and BGB companies – and complete companies – partnerships, corporations and some more.

The limited partnership – in short: Kommandite or KG – is one of the so-called complete companies and, in contrast to the incomplete companies, is not subject to the German Civil Code (BGB) but to the German Commercial Code (HGB). As a partnership, the KG is an uncomplicated form of corporate law, as it can be founded informally and a minimum of only two founding members is required.

Other typical partnerships:

• General partnership (OHG)
• Limited Liability Company and Company Limited Partnership(GmbH & Co KG)
• Limited Liability Company and Compagnie General Partnership(GmbH & Co OHG)

The limited partnership also appears to some extent as a share trading business, namely in the form of a partnership limited by shares (KGaA). This is no longer a partnership in the legal sense, but a corporation based on a stock corporation (AG), which has been given partnership characteristics…. Nevertheless, the special character of a traditional limited partnership shines through in a KGaA, which could make it an attractive legal form for start-ups who appreciate the combination of general partner and limited partner.

Read more about partnership limited by shares:

• Partnership limited by shares (KGaA)

Formation process of the KG: From the number of shareholders to the distribution of profits

You would like to found a KG? No problem! The formation process of a limited partnership is quite simple: On the one hand, you need at least one other person to be able to form a limited partnership. Secondly, an informal partnership agreement is sufficient, insofar as no real estate is contributed to the partnership. Due to the extensive similarity of the formation process and formalities, the KG is often referred to as a variation of a general partnership.

KG formation from 2 persons: Tax ID, commercial register, company name

The formation of a limited partnership requires at least two natural – or legal – persons. A maximum number of permissible partners is not specified by law. The internal relationship determines the beginning of the partnership as the date contractually agreed between the partners. In the external relationship however the emergence of the KG is dated on the first activity in the name of the enterprise, at the latest thus with the obligatory entry into the trade register. The registration costs you on average about 200 to 300 euros and is usually carried out by a notary. You will receive a tax identification number – tax ID for short – from your local tax office in advance. The registration of the limited partnership is carried out by the trade office for a processing fee of approximately 10 to 65 euros. Only in the case of contributed real estate are further costs incurred for the notarial certification of the partnership agreement.

Since you are entered in the commercial register as a KG shareholder, you can officially trade under your name – just like a OHG shareholder. This means that your company has a company name, i.e. an official name, which you can freely design together with the other partners. It doesn’t matter whether it is a personal company, a real company, a fancy company or a mixed company… As long as the name is in the sense of the prohibition of misleading and has the suffix “KG”, almost anything is allowed.

Limited partner & general partner: A question of liability

What is a limited partner and general partner? This is a question many people ask themselves when they first hear about the special characteristics of a limited partnership. This is because, unlike all other partnerships, the partners in a limited partnership are clearly divided into general partners and limited partners. Therefore, a single individual or legal entity can never be a general partner and a general partner at the same time.

The general partners of a KG are called general partners. They bear the same liability risk as the partners of a general partnership: They are liable with their business and private assets without limitation, directly and jointly and severally. Also their rights and obligations as partners correspond to a large extent to those of OHG partners – only the profit and loss distribution takes place differentiated.

The partial partners of a KG are called limited partners. From the time of registration of the company in the commercial register, their liability is limited to the contribution entered there, the so-called liability sum. Between entry into the partnership and registration, however, the same liability risk exists for limited partners as for general partners: For this period, from a legal point of view, there are only fully liable partners. So if something goes wrong and the limited partnership falls into arrears and financial difficulties, you as a future limited partner – even in the event of wrong decisions by your co-partner(s) – must assume unlimited liability for the partnership’s debts with your private assets.

Management with full liability, collusion & control

Management is a matter for the general partner. As a rule, limited partners cannot participate in decision-making with regard to ordinary business activities unless such joint management has been expressly stipulated in the partnership agreement. In the case of sole management by a limited partner, on the other hand, it is disputed whether and how the sole management authority once granted to the limited partner can be withdrawn again by means of a shareholders’ resolution. In order to avoid ambiguities and disputes, limited partners are therefore usually excluded from management activities.

Legal transactions are also subject to the sole power of representation of the general partners. This means that each fully liable partner may perform legal acts on behalf of the limited partnership in full and without restriction. Deviations – such as joint representation – are contractually possible, provided that all partners agree to this. Only in the case of actions that go beyond the ordinary operation of the commercial business do you, even as a general partner, have to consult with your co-partners. Here, the limited partners may also have a say and make use of their right to object.

Since the management authority and the power of representation give the individual general partners a great deal of freedom to make decisions, each partner – whether a general partner or a limited partner – may at any time personally obtain information about the affairs of the company, inspect the commercial books or draw up a balance sheet from the company papers. This ensures that none of the partners acts behind the backs of the others and that disagreements are adressed personally.

Financing, profit & loss distribution

The financing of your business is entirely up to you, so you can theoretically do without any start-up capital at all. However, it is advisable to have some reserves and to draw up a financing plan in order to be financially prepared in case of unpleasant surprises.

In contrast to the OHG, the distribution of profits in the case of a KG is not generally carried out at 4 percent of the capital share plus additional profit according to heads; instead, the additional profit is distributed “in reasonable proportion” in accordance with the statutory regulations. This also applies to the distribution of losses. In order to prevent disputes, clear regulations should be stipulated in advance in the partnership agreement.

In addition, profit shares are generally credited to the capital account until they correspond to the contribution entered in the commercial register. All profits in excess of this are regarded as liabilities of the KG to its limited partners and are either credited outside the capital account or paid out directly.

Rights of the limited partners: objection, control, profit & Co.

The rights of the partially liable partners secure your position in the KG despite the distribution of the liability risk among the general partners: The right to object comes into play in the case of actions that are extraordinary for the company… the right to control has the effect of keeping you informed about all matters…. Profits are distributed appropriately and you have the same rights of termination as a general partner.

Overview of the rights of limited partners:

• Right of objection
  • In the event of unusual operations
• Right of control
  • For corporate matters
• Profit share
  • 4 % of its capital share
  • Additional profit in reasonable proportion
• Right of termination
  • 6 months’ notice to the end of a financial year

Duties of the limited partners: mandatory contribution, liability & loss

As a limited partner, in many cases you cannot make your own decisions and are dependent on the guidance of the managing general partner in day-to-day business. However, especially with regard to liability issues and the capital contribution, it is important that you are familiar not only with your rights but also with your obligations as a limited partner.

Duties of limited partners at a glance:

• Capital contribution
  • Mandatory contribution may differ from liability amount
• Liability before registration
  • Unrestricted
  • Directly
  • Solidarity
• Liability after registration
  • Up to registered contribution (liability amount)
• Loss share
  • In proportion

Advantages: Flexibility of action, capital growth, liability risk at choice.

After presenting the typical characteristics of a limited partnership, you have certainly already recognized the advantages that this legal form offers you: The formation is relatively uncomplicated and you do not need any start-up capital. You can become active in the team and maintain your independence as a general partner or, as a limited partner, let others manage the day-to-day business without any restrictions on turnover. This offers you in both cases an attractive flexibility of action at relatively low costs.

In addition, as a limited partner you have the support of your fully liable co-founder(s): you make all extraordinary decisions together, while the general partners bear the decisive liability risk jointly and severally. By taking on additional limited partners, the capital base can also be increased quickly and easily, which is why banks are usually very positive about granting loans to limited partnerships.

• Fast and uncomplicated foundation
• Flexible share capital
• Attractive flexibility of action in the team
• No turnover limit
• Team decisions for exceptional transactions
• Joint and several liability of the general partners
• Low liability risk for limited partners
• Fast and easy capital growth
• High credit rating

Disadvantages: Full risk for general partners, registration requirement and HGB.

The disadvantages that the formation of a KG can bring with it are also quickly identified: On the one hand, you do not have one hundred percent decision-making power and must agree with your partner staff in special cases. Nevertheless, in case of doubt you must be fully and completely liable – even privately! even if you were not responsible for the losses. In addition, the limited partners participate as partial partners also only up to the height of the respective liability sum in the partnership debts. Thirdly, as a KG you are obliged to be entered in the commercial register and are no longer subject only to the BGB. Not least: Since the success of a limited partnership is largely tied to the teamwork and cooperation of the individual partners, internal disputes or serious breaches of trust can result in the dissolution of the partnership, and succession arrangements must be expressly set out in the partnership agreement.

• Consent requirement in special cases
• Full liability (incl. private assets) for general partners
• Loss participation of the limited partners only up to the amount of liability
• Obligation to register in the commercial register
• Validity of the HGB
• Endangering the continued existence of the company due to disagreements within the team
• Fixing the succession regulations in the shareholder agreement

Evaluation: Active & passive with team spirit to the goal

After comparing the advantages and disadvantages, the following emerges: A limited partnership offers a wide range of opportunities to participate directly or indirectly in a company. It is therefore suitable both for characters who like to make their own decisions and are prepared to accept a certain amount of risk for their goals…. as well as for those who shy away from the entrepreneurial risk and strive for capital growth without great personal effort. Common requirement: To join a KG you should be a team player and be able to respect and accept the opinions and advice of others.

Immobilien KG: asset management, family pool & Co

You don’t think the idea of a limited partnership is a bad idea at all, and now you’re wondering how to combine your partnership with the real estate industry? From real estate agents to asset management companies and family pools. All essential information on real estate partnerships, real estate GbR and real estate KG for you in a nutshell.

Small tip: When acquiring and/or managing real estate, make sure that all details are clearly stated in the partnership agreement. Due to the principle of joint, unlimited and direct liability, you should also make sure that your managing partners are persons with comparable creditworthiness – otherwise there could be difficulties with financing and creditworthiness.

Variant 1: Real estate agent with business licence

If you want to become a self-employed real estate agent, it’s not that easy. The profession of real estate agent is subject to the trade obligation and is not one of the liberal professions. This means that in order to be able to pursue this activity, you must first apply to the trade licensing office for permission and hope for a positive light. The official permit is required by law, for example to be able to assess your reliability in advance.

Real estate agent OHG, GbR & KG

Partnerships can also operate as real estate agents. However, without their own legal personality, OHGs, GbRs and KGs must obtain an official permit for each individual managing partner. In addition to the application form for permission, further documents must also be submitted. These include:

• A police clearance certificate – available on request from the Residents’ Registration Office;
• An extract from the Trade Central Register – available on request from the Ordnungsamt;
• A tax clearance certificate – available on request from the tax office;
• A certificate of no current insolvency proceedings – available on request from the local court;
• A certificate of missing entries in the debtors’ register – available on request from the local court.

A certificate of competence can also be provided on a voluntary basis.

Variant 2: Asset-managing partnership

If you want to be active in the area of surplus income – i.e.: income from non-self-employed work, capital assets, renting and leasing or other income – an asset-managing partnership could be just right for you. Here you can typically either use the legal form of a GbR or fall back on trading companies regulated in the HGB such as the OHG or KG. Mixed forms such as the GmbH & Co KG are also conceivable in principle, but mean further regulations and requirements.

Participation, say & tax advantages

An asset-managing partnership makes sense if several real estate investors want to manage their real estate holdings jointly. The aspect of ensuring succession in the event of inheritance is also interesting here. The partnership agreement determines how much say the individual partners have – decisions are often made on the basis of shares, but even partners with a small shareholding can gain a dominant voting right – for example, if they have enormous expertise, professionalism or experience.

Tax advantage of such an arrangement? The capital-forming partnership is not the same as the tax object: each partner is taxed individually and all income taxes as well as taxes from inheritance, sale or gratuitous transfer of partnership shares must be reported by each partner individually for tax purposes.

Asset-managing family company / family pool

The limited partnership in particular is ideally suited for the management of family assets. The internal family management of the joint real estate portfolio – the so-called family pool – is therefore advantageous, as the income generated in this way is not regarded as trade income, but as private income from letting and leasing. Thus the trade tax is omitted completely and also the fee-requiring registration with the trade office is settled. In the case of corporations, however, real estate is part of the business assets and as such is subject to trade tax.

In addition, compulsory membership of the Chamber of Industry and Commerce (IHK) with no trade tax liability is avoided and you can put your money to work without it flowing to the IHK as a contribution payment. Further taxes can be saved if the property is held in company ownership for at least ten years, because then the sale is no longer taxed with income tax.

Small tip: Due to the limited liability of the limited partners, minor family members can also participate in the family partnership, while the parents as general partners bear the full risk and therefore also make all ordinary business decisions.

Taxes for KG shareholders: ESt, USt & KSt

As a KG shareholder, you do not have to seriously think about a few types of tax, because without the income from a trade, trade tax does not apply to you. However, there is a uniform and separate determination of the profits, which forms the basis for the income tax assessment of the KG partners. Profit shares are evaluated accordingly as incomes from trade. The tax law provides that in addition to the income tax of each partner – or the corporate income tax of each legal entity – further duties for turnover tax must be paid, insofar as the limited partnership does not only carry out tax-exempt sales.

• Income tax (ESt)
• Value added tax (VAT)
• If applicable, corporate income tax (KSt)

You can find out what taxes you can expect with a real estate corporation here:

• Save taxes on real estate

Limited partnership – For whom is it worthwhile?

If you like to work in a familiar team and don’t want to overcome any major bureaucratic hurdles, you can get started quickly and easily as a limited partner. You can decide for yourself in advance whether you want to act as general partner and thus also bear the full risk, or whether you prefer to sit back as a limited partner while you let your money work for you. Great freedom of choice versus capital growth with limited liability – a KG makes sense above all for start-ups who are prepared to take on a great deal of entrepreneurial responsibility or are looking for a nice additional income without having to contribute significantly to the company.

From a real estate point of view, a KG is particularly worthwhile for beginners who would prefer to invest their capital directly in property management or deal in real estate instead of laying down the share capital for a corporation. For families, the limited partnership offers an attractive corporate legal form to manage the joint real estate portfolio in a cost-effective and uncomplicated manner. Another plus: even underage children can be integrated into the family pool as limited partners.

Limitation of liability, yes or no? KG & GmbH & Co KG in comparison

Many prospective business founders are faced with the question of whether they would like to set up a limited partnership (KG) or whether they would prefer to set up a limited liability company (Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellschaft, GmbH & Co KG). The two forms of company law are very similar in many respects – however, one significant difference lies in the question of liability. In the case of a limited partnership, the general partner assumes the full risk and is liable for both business and private matters. With a GmbH and Co KG it looks different: Here, the general partner is not a natural person, but a GmbH, i.e. a limited liability company. As a result, his private assets remain unaffected and the general partner is only liable in business terms.

You can find out more about the GmbH & Co KG here:

• Limited Liability Company & Compagnie Limited Partnership(GmbH & Co KG)

Learn for free: Start a company & legal forms

Besides the limited partnership (KG), there are a few other alternative types of companies that might be interesting for you as a founder! Want to learn more about starting a business? Learn more about share capital, taxes and the advantages and disadvantages of the different types of companies.

Here you will find all the legal forms that can be chosen as a founder in Germany and a guide with a checklist:

1. Legal forms: List
2. Founding a company: Procedure, costs and overview

Legal forms: List

Legal forms – What types of company are there? If you want to start your first company, then choosing the ideal legal form is one of the first steps in the process of setting up a company. Whether it’s a special real estate company or a start-up, I’ve summarized all the types of companies in Germany for you here.

• Legal forms: List

Company types in detail:

• Sole proprietorship
• Registered businessman / registered businesswoman (e. K.)
• Civil law partnership (GbR)
• General partnership (OHG)
• Limited partnership (KG)
• Entrepreneurial company (UG)
• GmbH: Limited liability company
• Real estate GmbH / Asset management GmbH
• Stock corporation (AG)
• Real estate stock corporation (REIT-AG)
• Societas Europaea (SE)
• Foundation / Family Foundation

Starting a company: Procedure, costs and checklist

Founding a company (real estate) – You want to found your first company? Requirements for you as a founder, share capital, shareholder agreements, costs for the foundation, legal forms and checklists. This sounds complicated for beginners, but it is actually quite simple. The process of founding a company is usually relatively the same. I have summarized the foundation here once in simple steps, for you. Learn how to start your own business. After the great guide to all legal forms or types of companies, today a detailed look at the establishment of a (real estate) company for beginners.

• Form a company

Der Beitrag Limited partnership (KG): formation, liability, legal form, management, taxes erschien zuerst auf ℄ Real Estates.