GmbH & Co. KG - GmbH & Co. KG

The limited liability company & Compagnie Kommanditgesellschaft ( GmbH & Co. KG ) is a limited partnership (KG) in German law , a special form of a limited partnership (KG) in Austrian law and thus a partnership . This legal form is not yet possible in Switzerland .

In contrast to a typical limited partnership, the personally and unlimitedly liable partner ( general partner ) is not a natural person, but a company with limited liability (GmbH). The aim of this corporate law construction is to exclude or limit liability risks for the people behind the company.

history

The admissibility of a GmbH & Co. KG was confirmed in a decision of the Reichsgericht dated July 4, 1922 (read under RGZ 101,106 [1] ). The court answered in the affirmative as to whether a corporation - i.e. a company in which a personal liability of the partners is not provided - may be the sole general partner of a limited partnership.

The operation of a GmbH & Co. KG involves some effort. [2] For example, Section 172 (6) of the German Commercial Code mentions the case that the personally liable partners of a GmbH do not include natural persons. Section 172 of the German Commercial Code has existed in this version since January 1981. [3]

Company

The company is the name under which the GmbH & Co. KG operates its business. It must be “suitable for identifying the businessman and be distinctive” ( Section 18 (1) of the German Commercial Code ). You must acc. § 19 Paragraph 1 No. 3 HGB (new version) have the designation "limited partnership" or a "generally understandable abbreviation" of this term (KG) in the name. Section 19 (2) also prescribes a designation that identifies the limitation of liability.

This results in the correct company name: Name GmbH & Co. KG.

Formerly used forms like Name GmbH & Comp. or Name GmbH & Cie. are no longer permitted. Incorrect company names, as they are misleading, are: Name KG-GmbH & Cie. or Name & Co. GmbH & Co. KG. For companies registered according to the old version of the German Commercial Code (HGB), the previous case law still applies , e.g. B. Name & Co. or Name & Cie., Also Name & Comp.

purpose

A limited partnership may, according to Section 161 (1) of the German Commercial Code, for the purpose of a commercial trade or according to Section 161 (2) in conjunction with V. m. Section 105 (2) of the German Commercial Code (HGB) to manage your own assets. Lawyers may not operate in the legal form of a KG. [4] Special features apply due to their professional laws for tax advisors and auditors for fiduciary activities ( §§ 49 Paragraph 1, 50 Paragraph 1 No. 3, 50 a StBerG ; § 27 Paragraph 2 WPO ). [5]

Shareholder

The relationships and rights of the shareholders among themselves regulates the social contract . The relevant requirements for the KG from the Commercial Code ( §§ 161 to 177a HGB) are largely dispositive, ie they can be changed through contractual agreements. So z. B. Section 119 (1) i. V. m. Section 161 (2) of the German Commercial Code (HGB) stipulates that the shareholders' resolutions must be passed unanimously. This regulation can be replaced in the articles of association by an agreement that allows majority resolutions. The calculation of this majority should also be defined here, otherwise the number of shareholders applies according to Section 119 (2) HGB.

Contribution of the general partner GmbH

The general partner company can participate in the KG with all or part of its assets. In the case of a contribution in kind, the establishment of the KG - in contrast to the GmbH - does not require a report in kind. In the case of a conversion from an existing GmbH to a GmbH & Co. KG, it may be advisable to U. to bring only the current assets of the GmbH into the KG and to leave the fixed assets with the GmbH. Alternatively, the investment of the GmbH can also be waived. In this case, the "performance" of the GmbH for the KG is limited to taking over the management and personal liability.

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. When the mandatory contribution is made, the limited partner's personal liability expires in the amount of the amount paid (regulation in Germany see Section 171 (1) HGB, in Austria see Section 171 (1) company code).

Management / representation

As with every KG, only the personally liable partner ( i.e. the general partner GmbH) is authorized to manage the company ( Section 164 HGB). Thus the managing director of the GmbH is indirectly also managing director of the KG. The limited partner is excluded from the management; he can only exercise his right of objection in the case of extraordinary transactions (Section 164 sentence 1 HGB).

The general partner GmbH is also the sole organizing representative of the GmbH & Co. KG, as the limited partners are excluded from organizing representation ( § 170 HGB). You (and third parties outside the company) can be granted power of attorney or power of attorney. The legal bases are the same as for the KG.

Weighing up between KG and GmbH & Co. KG

Advantages of the GmbH & Co. KG

Limitation of Liability

As a general partner, the GmbH has unlimited liability with all of its assets; the shareholders of the GmbH are liable in the amount of their capital contributions .

Succession planning

Since the heirs take their place as general partner after the death of a natural person , there is a liability risk for the heirs. This consequence does not occur if at least one corporation is a general partner.

Managing directors

Non-shareholders can be employed as managing directors of the general partner GmbH ( external organization ).

Disadvantages of the GmbH & Co. KG

Raising capital

The GmbH & Co. KG is less creditworthy , as no natural person has unlimited liability.

costs

The administrative costs are higher, because both the GmbH & Co. KG and the general partner GmbH are obliged to keep books , prepare and publish annual financial statements and submit tax returns.

Publications

The GmbH & Co. KG is subject to disclosure requirements in accordance with Section 264a of the German Commercial Code (HGB) and must disclose its annual financial statements like a corporation. It is therefore more transparent than a KG.

Company assets

The starting point for classifying the company's assets are the provisions of the German Civil Code (BGB) on civil society . Thereafter, the property is subject to a joint ownership bond. No partner has an asset of the company or a fractionof the company's assets. All shareholders have access to the company's assets at the same time. A typical structure of the company is that the GmbH, as general partner, is not granted any asset participation. The limited partners are regularly entitled to the entire assets. In spite of this, the GmbH also has a joint ownership interest in all of the company's assets. The agreed participation in the assets comes into play in the event of the shareholder's departure or the liquidation of the company. If the aforementioned typical structure is used, the GmbH will not receive any share in the event of departure or liquidation.

Annual accounts, publicity

Like any other corporation, the GmbH in the GmbH & Co. KG is a merchant within the meaning of the Commercial Code (HGB) and therefore has to keep books and prepare annual financial statements ( § 238 HGB). However, since no natural person is a general partner in a typical GmbH & Co. KG, it is subject to higher requirements for the preparation of the annual financial statements according to Section 264a of the German Commercial Code (HGB), like corporations, and must also publish them in the electronic Federal Gazette .

Distribution of profits

As a rule, the distribution of profits is regulated in the partnership agreement of the GmbH & Co. KG. Unless regulated here, the legal regulations according to § 161 HGB, which also apply to the OHG, apply:

The complementary salaries are paid first. Each partner receives 4% of the rest of the profit on his contribution. The remainder is now distributed proportionally. This happens acc. Section 168 (2) of the German Commercial Code (HGB) in an appropriate ratio, unless otherwise decided, e.g. B. according to the contribution of the respective partner.

Restructuring / Termination

The shareholders of the GmbH & Co. KG can cancel their membership in accordance with § 161 Paragraph 2 i. V. m. Termination according to § 132 HGB informally at the end of the respective financial year, with a notice period of six months.

Income and corporation tax

As a partnership , the GmbH & Co. KG itself is neither subject to corporation tax nor income tax . The profit share of the general partner GmbH is subject to corporation tax. The profit shares of the limited partners are subject to income tax, provided they are natural persons.

Business tax

In Germany, one standing is subject to commercial operation in accordance with § 2 1 para. 1 sentence GewStG the business tax . As a commercial partnership, the GmbH & Co. KG is generally subject to trade tax, but only from the time it begins its commercial activity. Preparatory actions for the establishment of a GmbH & Co. KG or processing measures for the dissolution of the company are not recorded for trade tax. For the commercial embossedGmbH & Co. KG, the opposite applies: here the trade tax liability begins with the start of any activity aimed at earning income. Since 2002, the sale of shares in partnerships has been subject to tax under certain conditions ( Section 7Sentence 2 GewStG). This applies insofar as no natural person is directly involved in the sold partnership. The partnership itself is taxable, not its shareholders. In the case of a two-story partnership: the parent company is a partner (co-entrepreneur) of the subsidiary company. Since she is not a natural person, the profit from the sale of the daughter is fully taxable. Insofar as a natural person is involved in the parent company, the trade tax from the sale becomes in accordance with Section 35 EStGcounted. By assigning a co-entrepreneur's share under civil law, the tax liability of the previous partnership is only terminated if all shareholders are eliminated. In the case of only a partial change of shareholders, the tax liability of the partnership continues.

Real estate transfer tax

Like any other partnership, the GmbH & Co. KG also acts as an independent legal entity : Whenever the KG acquires or sells a property, real estate transfer tax is due, even if the property transaction is concluded with one or more partners. The tax debtor is the KG, but the partners are jointly and severally liable ( Section 191 (4 ) AO ).

The tax transparency of the partnership is also noticeable in real estate transfer tax law: In the case of property transfers between shareholders and the company (and vice versa), § 3 , § 5 and § 6 GrEstG grant personal benefits. Sections 5 and 6 GrEStG exempt the transfer to the extent that a landowner remains involved in the property with the same ideal share. A five-year lock-up period is intended to prevent abuse: within this period of time after a tax-exempt property transaction, changes in the corporate structure can have a disadvantageous tax effect.

Bringing a piece of land into a family limited partnership is generally exempt from real estate transfer tax in full. The change of shareholders in a KG with real estate, on the other hand, may be subject to real estate transfer tax under certain circumstances.

Inheritance / gift tax

A GmbH & Co. KG that is purely asset management, does not operate commercially and does not have a commercial character, is treated under inheritance tax law (see Inheritance Tax and Gift Tax Act ) like private assets; in the case of a commercially active or commercially oriented GmbH & Co. KG, these are business assetsthat is tax-favored compared to private assets. In the case of the transfer of an asset-managing GmbH & Co. KG, the participation in a commercial partnership in the sense of membership is not inherited or given away, but only the share in assets. Proportional debts are not netted, but treated as a "mixed donation". In the case of the transfer of a commercially active or commercial GmbH & Co. KG, the balance sheet values ​​are relevant for tax purposes. Here, have hidden reserves are not taxed. This does not apply to land (use of the required value) and participations (use of the market value) in corporations, the valuation of which is independent of the nature or activity of the GmbH & Co. KG.

benefits

  • In the GmbH & Co. KG, the role of the personally liable partner is assumed by the GmbH. The liability of the shareholders behind the GmbH is limited to their capital contributions to the general partner GmbH or to their limited partner contributions to the KG.
  • More flexible equity procurement through limited partner contributions
  • enables a third party organization that is actually foreign to the partnerships
  • Possible co-determination advantages for the entrepreneurs (if the number of employees of the general partner GmbH is kept below 500 employees up to 2000 employees of the GmbH & Co. KG, then no formation of a supervisory board is necessary) [6]
  • There is no corporation tax at the KG level . The general partner GmbH can be designed in such a way that it generates only small profits. The tax savings of the GmbH & Co. KG compared to a GmbH are particularly significant if the profits generated are to be distributed to the shareholders.

disadvantage

  • The expense for bookkeeping is correspondingly high, since the books have to be kept and financial statements drawn up for both the KG and the GmbH. However, the booking movements at the general partner GmbH can be greatly reduced through design measures, so that the effort is not particularly significant if the design is clever.
  • The creditworthiness is limited because the bank is offered (relatively) little collateral (only the total capital of the GmbH and the limited partner), as no natural persons are personally liable without restriction.
  • The management remuneration of the GmbH does not have a tax-reducing effect on the KG. For the KG it is initially a business expense for tax purposes ( Section 4 (4) EStG), but is added back to the KG's total profit as a special remuneration ( Section 15 (1) No. 2 Sentence 1 EStG).

Expressions

Typical GmbH & Co. KG

In the typical GmbH & Co. KG (also with the same person), the shareholders of the general partner GmbH are also the limited partners of the GmbH & Co. KG.

Participation-identical GmbH & Co. KG

In a GmbH & Co. KG with the same equity participation, all shareholders are in the same ratio as limited partners in the KG and as shareholders in the general partner GmbH. In order to maintain the identity of the participation even in the event of a shareholder leaving, it is advisable to include a passage in the articles of association with which the termination of membership of the general partner GmbH simulates the termination of the KG.

Unitary company

At Einheits-GmbH & Co. KG, the KG holds all shares in the general partner GmbH. This unites the company management in one company, the KG. The risk of hidden repayment of contributions must be counteracted by corresponding agreements in the articles of association in order to meet the legitimate claim of creditors to receive the liable capital.

Einmann-GmbH & Co. KG

In Einmann-GmbH & Co. KG, one partner holds all limited partnership and GmbH shares.

Public KG

The public company (also “mass” or “capital investment company”) is designed to accept an almost unlimited group of people as limited partners. The limited partners have no personal relationship with one another and do not participate in the formulation of the partnership agreement, but merely join the existing company. [7]

The classic area of ​​application of the public limited partnership are the so-called closed funds. These differ from the so-called open funds (e.g. classic stock and pension funds) in their structure under company law and, above all, in that the shares cannot be officially traded on approved stock exchanges, but rather an exit (= possibility of termination) by the limited partners is excluded in principle during the planned term of the company. [8th]

A legal peculiarity must be observed with the public limited partnership : Because of its economic similarity to the stock corporation , the provisions of the stock corporation law are to be applied as far as possible instead of §§ 161 ff HGB (as they should actually be applied to a limited partnership) . [9]

Two-story GmbH & Co. KG

Another GmbH & Co. KG is the only general partner and / or limited partner in the two-story (or "multi-level") GmbH & Co. KG. Co-determination or conversion law reasons may speak in favor of such a construct; the high administrative effort with multiple bookkeeping and accounting speaks against it.

Star-shaped participation

If a GmbH is at the same time fully liable in several limited partnerships, one speaks of a "star-shaped participation" of the general partner GmbH. If the star-bound limited companies compete in the same branch, the non-competition clause from Section 112 (1) HGB should be waived in the articles of association.

Further KG forms with limited general partners

An entrepreneurial company (limited liability) can also be a general partner ( UG (limited liability) & Co. KG ). Foreign corporations are also possible as general partners, e.g. B. the Limited & Co. KG .

Legal situation in Switzerland

Since, under Swiss law, only natural persons can be general partners in a limited partnership ( Art. 594 Paragraph 2 OR ), a GmbH & Co. KG is not possible. Political efforts to change this have so far not been successful. [10]

literature

  • Mark K. Binz, Martin Sorg: The GmbH & Co. KG. 11th edition. CH Beck, Munich 2010, Verlag ISBN 978-3-406-58210-3 .
  • Anusch Tavakoli, Oliver Fehrenbacher: Taxation of the GmbH & Co. KG. Gabler Verlag, Wiesbaden 2007, ISBN 978-3-8349-0416-4 .
  • Michael Sommer: The articles of association of the GmbH & Co. KG. Beck, Munich 2005, ISBN 3-406-52234-3 .
  • Bert Tillmann: Handbuch der GmbH & Co .: systematic presentation from a commercial and tax law perspective. 17., rework. and substantially exp. Edition. O. Schmidt, Cologne 1991, ISBN 3-504-32516-X .
  • Welf Müller (ed.); Roman Bärwaldt: Becksche's manual of partnerships: company law - tax law. Verlag CH Beck, Munich 1999, ISBN 3-406-44456-3 .
  • Klaus J. Hopt: Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law). 32., rework. u. exp. Edition. Beck, Munich 2006, ISBN 3-406-53930-0 .
  • Ingo Koller, Wulf-Henning Roth, Winfried Morck: Commercial Code: Commentary. 5th edition. Beck, Munich 2005, ISBN 3-406-53330-2 .

Weblinks

Individual evidence

  1. judgment of 04.07.1922, Ref .: Rep. II. B 2/22. . research.wolterskluwer-online.de. Retrieved April 18, 2020.
  2. ^ Chamber of Commerce and Industry Bonn / Rhein-Sieg: The GmbH & Co. KG
  3. 172 para. 6 HGB in the version from January 1981
  4. ^ Judgment of the Senate for Legal Matters of the Federal Court of Justice of July 18, 2011 - file number: AnwZ (Brfg) 18/10. Retrieved February 27, 2020 .
  5. Martin Henssler : GmbH & Co KG as a legal form for the liberal professions? In: Rechtsboard ( Handelsblatt ). September 19, 2011, accessed March 29, 2015 .
  6. ^ Bizer, Körner, Nolden: Industriebetriebslehre. Management of operational processes. 12th edition. Bildungsverlag EINS, Troisdorf 2008, ISBN 978-3-8237-0560-4 , p. 70 f.
  7. Instructive section § 18 VIII 2. (pages 149 ff) about the Public KG in Götz Hueck, company law, 18th edition 1983.
  8. Baumbach / Hopt, Commentary on the Commercial Code, 36th edition 2014, No. 52 of the appendix according to § 177a HGB
  9. Baumbach / Hopt, Commentary on the Commercial Code, 36th edition 2014, No. 53 of the appendix according to § 177a HGB with reference to BGH NJW 1973, 1604.
  10. See message on the revision of the Code of Obligations (GmbH law and amendments to stock corporation, cooperative, commercial register and company law) (PDF; 678 kB) of December 19, 2001, p. 3167 f. Now with the more general concern of admitting legal persons as partners in general partnerships, motion 10.3154 “Legal persons as partners in general partnerships” of March 17, 2010.