Features of the limited partnership, who is responsible for the partnership's obligations, what are the accounting and tax matters
It belongs to the group of partnerships. It is a good solution for partners, one of whom is involved in the company's affairs and the other wants to only provide a financial contribution.
Features of the limited partnership
A characteristic feature of a limited partnership (as well as other partnerships) is that it has legal, judicial and procedural capacity without having legal personality at the same time. In practice, this means that a partnership can, for example, acquire rights and obligations on its own behalf. However, it does not have legal personality, i.e. it does not have bodies (e.g. management board), it cannot be held liable for its debts (partners are responsible for them).
A limited partnership may be formed by at least two persons, one of whom is a limited partner. The other person is a general partner (he is responsible for the company's liabilities with all his assets).
The commandite sum determines the level of responsibility of the partner (it may be arbitrary). If the limited partner makes a contribution to a partnership in an amount higher than the commandite sum, then this partner is not liable towards the creditors for the partnership's obligations. However, if the contribution is lower than the amount of the determined commandite sum, the limited partner is liable for the partnership's obligations only up to the amount of the difference between the commandite sum and the value of the contribution made.
There is no minimum capital required.
If the limited partner's contribution to the company is in whole or in part a non-cash benefit, the articles of association of the company shall specify the subject of such benefit (contribution in kind), its value, as well as the person of the partner providing such benefit in kind.
Liability of shareholders
In the case of a limited partnership, the general partners are liable for the partnership's debts without limitation by their private assets (here: as in the case of the general partnership partners). The liability of limited partners is limited. The scope of liability of each limited partner towards creditors up to the amount specified in the articles of association (the so-called commandite sum). Therefore, the general partner's liability is subsidiary, which means that enforcement against that partner will be possible only in the case of ineffectiveness (in whole or in part) of the enforcement proceedings conducted against the partnership.
Representation of the partnership
Each general partner may represent the partnership independently. A limited partner may represent the partnership only as a proxy.
The name (business name) of the limited partnership shall include the name of one or more general partners and the additional indication 'limited partnership'. It is allowed to use the abbreviation "sp.k." in trade. If the general partner is a legal person, the name of the limited partnership should include the full wording of the legal person's company(ies) with the additional indication "limited partnership". This shall not preclude the name of a general partner who is a natural person from being indicated. The name of a limited partner may not be included in the company's name. If the name or business name of a limited partner is included in the partnership's name, the limited partner is liable towards third parties as a general partner.
The articles of association of the limited partnership
It should be concluded in the form of a notarial deed.
The articles of association of a limited partnership should contain:
- company name and registered office
- the objects of the partnership
- the duration of the partnership, if any
- an indication of the contributions of each member and their value
- a quantified responsibility of each limited partner towards creditors (commandite amount).
Registration of the partnership
The partnership is registered in the National Court Register. The partnership may be formed and registered either by traditional or by electronic means.
NIP and REGON
NIP and REGON numbers are assigned "automatically" when the partnership is registered in the National Court Register.
The distribution of profits may be determined by the articles of association of the partnership. If there are no provisions in the agreement, each general partner's share shall be equal, irrespective of the nature and value of the contributions, and each limited partner's share shall be in proportion to the limited partner's actual contribution to the partnership.
The limited partnership's income tax is paid by the partners, not by the partnership. Revenues earned by them are treated as revenues from business activity. The profit earned by the partnership is subject to distribution among its partners.
Then, each partner pays income tax for himself, depending on his legal form, it will be personal income tax or corporate income tax.
If the partner is a natural person, he may apply a 19% rate of tax on income (flat rate tax) obtained from being a partner in a limited partnership. The requirements have to be fulfilled. The choice of this form is not possible if in the course of business activity the taxpayer in the current or previous tax year performed or performs the same activities which he performed for the current or former employer under the employment relationship.
Each partner may choose the form of taxation of his or her income from the partnership regardless of the form chosen by other partners.
The limited partnership is a separate VAT payer.
The limited partnership is obliged to keep full accounting records (books of account).
Obligations towards ZUS
When a partnership is registered, it will be automatically registered with the Social Insurance Institution as a payer. There is no need to submit additional applications to the Social Insurance Institution. But the payers are also the partners. Therefore, a person starting business as a limited partnership is obliged to register himself as a payer of insurance contributions (at least for health insurance) with the Social Insurance Institution (ZUS) within 7 days from the registration of the partnership. A partner of such a company is a payer of contributions for his own insurance, therefore, he should prepare and submit to the Social Insurance Institution a notification of:
- the payer of contributions on the ZUS ZFA form, in which he enters his own identification data, i.e. PESEL and NIP or NIP number, REGON and PESEL (if the partner also runs a separate business activity, other than conducted in the form of a partnership)
- himself/herself as an insured person - on the ZUS ZUA form (or, if he/she will be subject only to health insurance - on the ZUS ZZA form), with a PESEL identification.