Partnerselskaber: Den oversete selskabsform
Student thesis: Master Thesis and HD Thesis
- Lennart Bo Falk Hedegaard Mouritzen
4. term, Business Economics and Auditing, Master (Master Programme)
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.
Language | Danish |
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Publication date | 2006 |
Number of pages | 99 |
Publishing institution | AAU |