Die Kommanditgesellschaft im Rechtsvergleich – Hintergründe der unterschiedlichen Karriere einer Rechtsform
Jahrgang 78 (2014) / Heft 1, S. 109-154 (46)
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The Limited Partnership in Comparative Perspective – Explanations for the Different Evolution of a Legal Form The limited partnership originated centuries ago in France, from where it spread – inter alia – to Germany, the US and, finally in 1907, to England. Today's practical importance of limited partnerships in each of these jurisdictions differs widely. In France, the société en commandite is quasi-extinct. In England and the US, limited partnerships are used predominantly as investment vehicles. Only the German Kommanditgesellschaft plays a significant role as a legal form for small and medium-sized enterprises. This article shows that the different fate of the limited partnership form in France, England, the US and Germany can be explained by the interplay of three factors: limited liability, tax transparency, and the ability of the limited partner to manage and control the partnership. The limited partnership competes mainly with corporate forms that are tailor-made for small and mediumsized enterprises and that offer limited liability for all shareholders. In contrast, the limited partnership form is defined by the existence of at least one general partner who is personally liable for the partnership's debt. All four jurisdictions allow for the compensation of this disadvantage by using a corporation as sole general partner. However, as this structure is more complicated than a plain vanilla corporation, the limited partnership needs an additional competitive edge to be attractive. This crucial advantage consists in its tax transparency. Tax transparency means that profits of limited partnerships are taxed only at partner-level whereas corporate shareholders have to bear an additional layer of taxation at the corporate level. Only France denies tax transparency to limited partners and taxes them like corporate shareholders, which explains the disappearance of the société en commandite. The fact that limited partnerships in England and the US are used almost exclusively as investment vehicles is due to an ancient and now obsolete rule which links limited liability to non-participation in management or control of the partnership and thus requires the limited partner to remain a passive investor. Unlike England and the US, Germany narrowly avoided adopting the same concept. This gave the German Kommanditgesellschaft the flexibility to allow the limited partner to become the dominant figure in the partnership. The general partner of a typical Kommanditgesellschaft is nowadays a corporation which does not share in the profits of the partnership and which functions only as a dummy for the limited partners. This structure has been recognized in Germany since the 1920s and offers the same attractive features as the American Limited Liability Company (LLC): a combination of limited liability, tax transparency and control.