Partnerselskaber: Den oversete selskabsform

Studenteropgave: Kandidatspeciale og HD afgangsprojekt

  • Lennart Bo Falk Hedegaard Mouritzen
4. semester, Revision (cand.merc.aud.), Kandidat (Kandidatuddannelse)
named partner company) is a type of company which is ruled by the Danish law of public limited companies (in Danish: Aktieselskabsloven). The partner company is a survey type of company in the Danish trade and industry; which is meant to be because of uncertainty of the legislation, ignorance of the advantage of the company type and insufficient breadth of view of the company model by the entrepreneurs. The partner company is composed by limited shareholders who altogether has subscribed an amount of nominal capital of DKK 500.000, and a complement person or company who has an unlimited liability for the partner company. The limited shareholders have limited liability with their subscribed amount of capital, and often the complement is a limited company owned by the shareholders, which causes complete limited liability for the shareholders. The partner company is regulated by the Danish law of public limited company’s with the necessary steps of modification, as it is printed in the law. Fore an example the complement has to have certain amount of economical and management authority, or else the partner company can’t be registered at the responsible authority (Erhvervs- & Selskabsstyrelsen). There is also a demand for publicity of the agreement between the complement and the company in the rules of the company. The advantage of the company law is mainly the larger degree of freedom in agreements which the type of company allows Fiscally the partner company is not considered an independent object of taxation in order of the Danish fiscal legislation. The partner company is different from the normal public limited company. The taxation of income from a partner company is conducted by the rules of personal companies. Personal companies are taxed by the principal of transparent taxation. Transparent taxation is basically that the individual shareholder is taxed by his or its ideal stake of the company. The advantage of this taxation method is divided in to parts, if the shareholder is a person, it is taxed by the personal legislation, and if it is a company it is taxed by the company legislation. Common for the two shareholder types is, that the shareholder achieves an individual right to deprecate assets in the base of taxes, hereby goodwill, which wouldn’t be an object of depreciation if it was bought as shares in a public limited company. The shareholder also has the opportunity to use the income, positive or deficit, to set-off in other incomes. However there is a limitation in the set-off for deficit income, the shareholder can only set-off deficit corresponding to the shareholders total amount of liability in the company. The company type gives the shareholders an opportunity to distribute the result of the company differently than it would be possible in the public limited company, with out wage payment and thereby taxed by the law of personal income. Physical persons has the chance of using the rules of the legislation “Virksomhedsskatteloven”, and fore an example achieve full deduction for financial costs in order of the part in the company, and achieve the opportunity to dispose differently over the income from the company, than just wages which will be fully taxed by the legislation of personal income. you can risk, that joint taxation cant be established because the owner condition doesn’t comply with the rules of joint taxation. This means, that in some situations, you can’t realize the tax value of deficit, that in a develop- or grow phase can be an essential financial source, as the percent of company taxes now is 28 %. One of the disadvantages of a partner company is, when changes in the owner conditions occure, the shareholders whose percent part of the company changes, will be taxed by the rules of profit by ideal shares. It is therefore more difficult to exit the participation in a partner company. This disadvantage is illustrated best if we compare with the so called Holding model, where a holding company can sell its shares in a public limited company free of tax after 3 years of ownership. Other disadvantage with the partner company is that the company is regulated by the Danish law of public limited company’s with the necessary steps of modification, which can cause insecurity of the judicial foundation, when we speak of necessary steps of modification for one or the other reason. There is judicial foundation for converting public limited company to a partner company, and the other way around, where succession is being used with the normal terms of the Aktieselskabslov. As a principal rule you can’t succeed fiscal when you convert in to or from a partner company. There are though specific situations where it’s possible to convert with succession, but these are the exceptions to the principal rules. The treatise is built up around the partner company as a company for newly established companies, generational changes, companies with more contenders, and company with active and resistant shareholders/investors. The advantage for the partner company in order of newly established companies is mainly de fiscal advantages, where it’s possible to use deficit, write-off assets and similar for financial purpose in the company. The opportunity for alternative profit sharing can also be a decisive factor for this type of company. Generation changes can also use the opportunities to write-off goodwill, full deductions for financial costs, and other deductions in the tax base. By generation changes it could also be an advantage to use the partner company’s opportunities for enlarged authority to a single contender, and alternative profit sharing. The choice of the partner company would in this connection also be the reason that the company is using permanent rules in order of the Aktieselskabslov. Companies with more contenders/shareholders, maximum 10 shareholders if it is physical persons because of the fiscal legislation, can also use the partner company with advantage in what concerns deduction for financial costs. The problem about joint taxation can also be an important argument, when the shareholder is a legal unit. The partner company can also be a possibility, if we have a company with a mix of active and resistant shareholders/investors. In this construction it can also be even more relevant to give the active contenders enlarged authority and unlimited liability, while the investors can be more resistant in the daily operation, and only be liable for its capital amount in the company. It is an essential disadvantage for the investors, that they can’t sell their parts of the company without taxation of the profit. Finally it’s concluded that it takes a thorough consideration each time a company is established. The partner company should always be considered on the same level as ordinary sued company types in Denmark. This responsibility lies by the advisors, which apparently often overlook the advantages of the partner company.
Antal sider99
Udgivende institutionAAU
ID: 12182398