Limited liability partnership

A limited liability partnership (LLP) is a partnership in which some or all partners (depending on the jurisdiction) have limited liabilities. It therefore can exhibit elements of partnerships and corporations. In an LLP, each partner is not responsible or liable for another partner's misconduct or negligence. This is an important difference from the traditional partnership under the UK Partnership Act 1890, in which each partner has joint (but not several) liability. In an LLP, some or all partners have a form of limited liability similar to that of the shareholders of a corporation. Unlike corporate shareholders, the partners have the right to manage the business directly.[1] In contrast, corporate shareholders must elect a board of directors under the laws of various state charters.[1] The board organizes itself (also under the laws of the various state charters) and hires corporate officers who then have as "corporate" individuals the legal responsibility to manage the corporation in the corporation's best interest. An LLP also contains a different level of tax liability from that of a corporation.

Limited liability partnerships are distinct from limited partnerships in some countries, which may allow all LLP partners to have limited liability, while a limited partnership may require at least one unlimited partner and allow others to assume the role of a passive and limited liability investor. As a result, in these countries, the LLP is more suited for businesses in which all investors wish to take an active role in management.

In some countries, an LLP must have at least one person known as a "general partner", who has unlimited liability for the company.

There is considerable difference between LLPs as constituted in the U.S. and those introduced in the UK under the Limited Liability Partnerships Act 2000 and adopted elsewhere. The UK LLP is, despite its name, specifically legislated as a corporate body rather than as a partnership.

National variations

Australia

Partnerships are governed on a state-by-state basis in Australia.[2] In Queensland, a limited liability partnership is composed of at least one general partner and one limited partner. It is thus similar to what is called a limited partnership in many countries.[3]

Canada

All provinces—except Yukon, Prince Edward Island, and Nunavut—permit LLPs for lawyers and accountants. In British Columbia, the Partnership Amendment Act, 2004 (Bill 35) permits LLPs for lawyers, accountants, and other professionals, as well as businesses.[4]

China

In China, the LLP is known as a Special general partnership (特殊普通合伙). The organizational form is restricted to knowledge-based professions and technical service industries. The structure shields co-partners from liabilities due to the willful misconduct or gross negligence of one partner or a group of partners.

France

There is no exact equivalent of a Limited Liability Partnership in France. A limited partnership is equivalent to the French law vehicle known as a fr:Société en Commandite. A partnership company can be an equity partnership, known as a fr:Société en Participation (SEP), of a general partnership known as a fr:Société en Nom Collectif (SNC).

Germany

The German Partnerschaftsgesellschaft or PartG is an association of non-commercial professionals, working together. Though not a corporate entity, it can sue and be sued, own property and act under the partnership's name. The partners, however, are jointly and severally liable for all the partnership's debts, except when only some partners' misconduct caused damages to another party — and then only if professional liability insurance is mandatory. Another exception, possible since 2012, is a Partnerschaftsgesellschaft mbB (mit beschränkter Berufshaftung) where all liabilities from professional misconduct are limited by the partnership's capital.

The Partnerschaftsgesellschaft is not subject to corporate or business tax, only its partners' respective income is taxed.

Greece

An LLP is an approximate equivalent to the Greek ΕΠΕ (Εταιρεία Περιορισμένης Ευθύνης Etería Periorisménis Evthínis) meaning Company of Limited Liability. In an ΕΠΕ the partners own personal shares that can be sold by a partner only when all other partners agree. The business management can be exercised either directly by the board of partners or by a General Manager. In the aspect of liability, an ΕΠΕ is identical to an LLP.

India

The Limited Liability Partnership Act 2008 was published in the official Gazette of India on 9 January 2009 and has been in effect since 31 March 2009. However, only limited sections of the Act have been ratified.[5] Rules of the Act were published in the official Gazette on 1 April 2009 and amended in 2017.[6] The first LLP was incorporated on 2 April 2009.[7]

In India as in many other jurisdictions, an LLP is different from a Limited Partnership. An LLP operates like a limited partnership, but in an LLP, each member is protected from personal liability, except to the extent of their capital contribution in the LLP.

In India, for all purposes of taxation (service tax or any other stipulated tax payment), an LLP is treated like any other Partnership firm.
Liability is limited to each partners agreed upon contribution to the LLP.
No partner is liable on account of the independent or unauthorized actions of other partners, thus allowing individual partners to be shielded from joint liability created by another partner's wrongful business decisions or misconduct.
An LLP shall be a body corporate and a legal entity separate from its partners. It will have perpetual succession. Indian Partnership Act, 1932 shall not be applicable to LLPs and there shall not be any upper limit on number of partners in an LLP unlike an ordinary partnership firm where the maximum number of partners can not exceed 20.
The LLP Act has a mandatory requirement that one of the partners in the LLP must be an Indian.
Provisions have been made for corporate actions like mergers and acquisitions.
While enabling provisions in respect of winding up and dissolutions of LLPs have been made, detailed provisions in this regard would be provided by way of rules under the Act.
The Act also provides rules for Limited Partnerships.
The Registrar of Companies (RoC) shall register and control LLPs too.

Characteristics

Separate legal entity: Like a company, LLP also has a separate legal entity. So the partners and the LLP in are distinct from each other. This is like a company where directors are different from the company.
No requirement of minimum capital: In the case of companies there should be a minimum amount of capital that should be brought by the members or owners who want to form it. But to start an LLP there is no requirement of minimum capital.
Minimum number of members: To start a limited liability partnership at least two members are required initially. However, there is no limit on the maximum number of partners.
No requirement of compulsory audit: All the companies, whether private or public, irrespective of their share capital, are required to get their accounts audited. But in case of LLP, there is no such mandatory requirement. A limited liability partnership is required to get the audit done only if:

the contributions of the LLP exceeds ₹ 25 lakhs or
the annual turnover of the LLP exceeds ₹ 40 lakhs[8]

Benefits

It is more flexible to organize the internal structure of LLP. Comparatively, it is complex to organize the internal structure of a company.
There is no maximum limit for the number of partners in LLP. In the private limited company, shareholders are limited to the extent of 200 shareholders.
Raising and utilization of funds depends on the partners will. Funds can be bought and utilized only as per the norms listed under the Companies Act, 2013.
LLP is exempt from Dividend Distribution Tax (DDT). In contrast, a company has to pay DDT on dividend distribution.
Professionals like Chartered accountant, Cost Accountant(CMA), Advocates, engineers, and doctors may prefer to register as LLPs.
No requirement of compulsory audit: All the companies, whether private or public, irrespective of their share capital, are required to get their accounts audited. But in case of LLP, there is no such mandatory requirement.

Disadvantages

Any act of the partner without the other partner may bind the LLP.
LLP cannot raise money from the public.
Angel investors and venture capital firms generally prefer not to invest in LLPs. Private Limited companies are preferred over LLPs.[9]

Incorporation process

Obtain digital signature from the partners.
Apply for the DIN (Director Identification Number) which is necessary to become a partner in the LLP.
Apply for the name approval for the LLP registration.
India Registrar of Companies issues the Certificate of Incorporation which is the proof for the registration.
File for a Permanent Account Number (PAN) from NSDL.[10]
Execute a LLP agreement and file ith with the registrar within thirty days of the formation of the LLP.[11]
Company details can be checked on the Ministry of Corporate Affairs, Companies Master Data Website.[7]

Japan

Limited liability partnerships (有限責任事業組合, yūgen sekinin jigyō kumiai) were introduced to Japan in 2006 during a large-scale revamp of the country's laws governing business organizations. Japanese LLPs may be formed for any purpose (although the purpose must be clearly stated in the partnership agreement and cannot be general), have full limited liability and are treated as pass-through entities for tax purposes. However, each partner in an LLP must take an active role in the business, so the model is more suitable for joint ventures and small businesses than for companies in which investors plan to take passive roles.[12][13]

Japanese LLPs may not be used by lawyers or accountants, as these professions are required to do business through an unlimited liability entity.[14]

A Japanese LLP is not a corporation, (i.e. a separate legal entity from partners within the meaning of Anglo-American Law) but rather, exists as a contractual relationship between the partners, similar to an American LLP. Japan also has a type of corporation with a partnership-styled internal structure, called a godo kaisha, which is closer in form to a British LLP or American limited liability company.

Kazakhstan

The concept of LLP exists in Kazakhstan law. All partners in a Kazakhstan LLP have limited liability, and they are liable for the debts of the partnership to the extent of the value of their corresponding participatory interests in the partnership. The names for LLP in Kazakhstan are "ЖШС" (which stands for Жауапкершілігі шектеулі серіктестік Zhawapkershiligi shektewli seriktestik) in Kazakh and "ТОО" (which stands for Товарищество с ограниченной ответственностью Tovarishchestvo s ogranichennoy otvyetstvyennostʼyu) in Russian. This is the most popular business form in Kazakhstan. Almost any private business may be incorporated as an LLP (notable exceptions are banks, airlines, insurance companies, and mortgage companies, which must be incorporated in the form of a joint stock company).

An LLP in Kazakhstan is a corporate body, and in fact, is an Limited Liability Corporation (LLC). Partners cannot conduct business on their own, and it is the corporate body that conducts the business.

There is also a concept of "simple partnership" in Kazakhstan law, which corresponds more closely to the general concept of partnership, but it is not widely used and is not well developed in Kazakhstan.

Kenya

In Kenya, limited liability partnerships have a legal personality distinct from its member partners. The liability of the partners is limited to any amount that may remain unpaid over the capital of the partnership. However, partners may be deemed liable for omissions or actions done by themselves if they lacked the relevant authority from the partnership or the affected party knew that such partner lacked authority or had no reason to believe that such person was a partner in the partnership. Registration is what vests such legal personality upon the entity. Registration is done by the registrar of Companies after meeting. The requirements are set out in the Limited Liability Partnership Act of 2011.[15]

Nigeria

In Nigeria, limited liability partnerships have legal personality. However, one must register a partnership first before it can gain the status of limited liability partnership.

Poland

A close equivalent to limited liability partnerships under Polish law is the spółka partnerska, where all partners are jointly and severally liable for the partnership's debts apart from those arising from another partner's misconduct or negligence. This partnership type is only addressed to representatives of some "high risk" occupations, such as lawyers, medicine doctors, tax advisers, accountants, brokers, sworn translators etc.

Romania

An LLP is equivalent to the Romanian law vehicle known as a Societate civilă profesională cu răspundere limitată.

Singapore

LLPs are formed under the Limited Liability Partnerships Act 2005. This legislation draws on both the US and UK models of LLP, and like the latter establishes the LLP as a body corporate. However, for tax purposes it is treated like a general partnership, so that the partners rather than the partnership are subject to tax (tax transparency).

United Kingdom

In the United Kingdom LLPs are governed by the Limited Liability Partnerships Act 2000 (in Great Britain) and the Limited Liability Partnerships Act (Northern Ireland) 2002 in Northern Ireland, with the rules governing this scheme consolidated across the UK with the Companies Act 2006, the latter coming into effect in 2009.[16] It was lobbied for by the Big Four auditing firms, all of which had converted by January 2003, limiting their liability for their audits.[17][18] A UK limited liability partnership is a corporate body - that is to say, it has a continuing legal existence independent of its members, as compared to a Partnership which may (in England and Wales, does not) have a legal existence dependent upon its membership.

A UK LLP's members have a collective ("Joint") responsibility, to the extent that they may agree in an "LLP agreement", but no individual ("several") responsibility for each other's actions. As with a limited company or a corporation, members in an LLP cannot, in the absence of fraud or wrongful trading, lose more than they invest.

In relation to tax, however, a UK LLP is similar to a partnership, namely, it is tax-transparent. That is to say it pays no UK corporation tax or capital gains tax. Instead, LLP income and/or gains are distributed gross to partners as self-employed persons, rather than as PAYE employees. Partners receiving income and/or gains from an LLP are liable for their own taxation.

There is no requirement for the LLP agreement even to be in writing because simple partnership-based regulations apply by way of default provisions. It has been closely replicated by Japan, Dubai, and Qatar. It is perhaps closest in nature to a limited liability company in the United States of America although it may be distinguished from that entity by the fact that the LLC, while having a legal existence independent of its members, is not technically a corporate body because its legal existence is time limited and therefore not "continuing."

The LLP structure is commonly used by accountants to retain the tax structure of traditional partnerships whilst adding some limited liability protection. LLPs are also becoming more common among firms in the legal profession such as solicitors although they are permitted to use a limited company structure.[19]

United States

Example of an LLP-Office in the State of Georgia (U.S.)

In the United States, each individual state has its own law governing their formation. Limited liability partnerships emerged in the early 1990s: while only two states allowed LLPs in 1992, over forty had adopted LLP statutes by the time LLPs were added to the Uniform Partnership Act in 1996.[20]

The limited liability partnership was formed in the aftermath of the collapse of real estate and energy prices in Texas in the 1980s. This collapse led to a large wave of bank and savings and loan failures. Because the amounts recoverable from the banks were small, efforts were made to recover assets from the lawyers and accountants that had advised the banks in the early 1980s. The reason was that partners in law and accounting firms were subject to the possibility of huge claims which would bankrupt them personally, and the first LLP laws were passed to shield innocent members of these partnerships from liability.[21]

Although found in many business fields, the LLP is an especially popular form of organization among professionals, particularly lawyers, accountants, and architects. In some U.S. states, namely California, New York, Oregon, and Nevada, LLPs can only be formed for such professional uses.[22] Formation of an LLP typically requires filing certificates with the county and state offices. Although specific rules vary from state to state, all states have passed variations of the Revised Uniform Partnership Act.

The liability of the partners varies from state to state. Section 306(c) of the Revised Uniform Partnership Act (1997) (RUPA), a standard statute adopted by a majority of the states, grants LLPs a form of limited liability similar to that of a corporation:

An obligation of a partnership incurred while the partnership is a limited liability partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the partnership. A partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for such an obligation solely by reason of being or so acting as a partner.

However, a sizable minority of states only extend such protection against negligence claims, meaning that partners in an LLP can be personally liable for contract and intentional tort claims brought against the LLP.[23] While Tennessee and West Virginia have otherwise adopted RUPA, their respective adoptions of Section 306 depart from the uniform language, and only a partial liability shield is provided.[24]

As in a partnership or limited liability company (LLC), the profits of an LLP are allocated among the partners for tax purposes, avoiding the problem of "double taxation" often found in corporations.

Some US states have combined the LP and LLP forms to create limited liability limited partnerships.

Some consequences of limited liability

Limited Liability Partnerships, as well as all forms of limited liability companies, offer alternatives to traditional company and corporate structures. Limited liability can enable opportunities for new business growth that were formerly accessible only to those who had access to large amounts of capital or other resources.

Depending on jurisdiction and industry, there can be negative consequences for stakeholders associated with limited liability. For some large accountancy firms in the UK, reorganizing as LLPs and LLCs has relieved them of owing the "duty of care" to individuals and clients who are adversely affected by audit failures.

Accountancy firm partners share the profits, but don’t have to suffer the consequences of negligence by firm or fellow partners. Not content with lobbying and financing political parties to get their way, accountancy firms have hired entire governments to advance their interests. PricewaterhouseCoopers and Ernst &Young hired the legislature of Jersey to enact a LLP Bill, which they themselves had drafted. They awarded themselves protection from lawsuits, with little public accountability... Accounting is central to all calculations about institutionalised abuses, tax and responsibility avoidance.[18]

In the U.S., the Delaware Supreme Court Chief Justice Myron Steele suggested that limited liability entities should not be held to common law standards of fiduciary principles (as applied to all other company and corporate structures). Instead, he argued that courts should use contractual analysis of the partnership agreement when assessing cases of improper corporate governance.[25] This directly led to elimination of the "independent fiduciary duty of good faith" in Delaware corporate law in 2006.[26]

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"Limited Liability Partnerships: a new legal form appearing across the Tasman - Chapman Tripp". www.chapmantripp.com. Retrieved 13 August 2017.
Branch, c=AU; o=The State of Queensland; ou=Communication Services. "Limited liability partnership | Your rights, crime and the law". www.qld.gov.au. Retrieved 13 August 2017.
"Limited Liability Partnerships: A Reality pat Last in BC". LBarTalk. Canadian Bar Association: British Columbia Branch. 16.3 (June 2004). Archived from the original on 30 May 2010.
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Pandey, Anubhav (15 August 2017). "Why Don't Venture Capitalists Like Investing in LLP?". iPleaders. Retrieved 9 November 2018.
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Private Eye, "Brass plates, brass neck", No 1340, 17–30 May 2013, p 20
Jim Cousins; Austin Mitchell; Prem Sikka (2004). "Race to the Bottom: The Case of the Accountancy Firms" (PDF). Association for Accountancy & Business Affairs. pp. 2–3. Retrieved 18 June 2018.
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Robert W. Hamilton (1995). "Registered Limited Liability Partnerships: Present at Birth (Nearly)". Colorado Law Review. 66: 1065, 1069.
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Steele, Myron (2007). "Judicial Scrutiny of Fiduciary Duties in Delaware Limited Partnerships and Limited Liability Companies" (PDF). Delaware Journal of Corporate Law. 32. Retrieved 18 June 2018.
Stone v. Ritter, 911 A.2d 362 (Del. 2006) (en banc) (holding that no independent fiduciary duty of good faith exists in Delaware corporate law)