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Since we often received the inquiries from our clients
regarding the differences between the partnership, Limited Partnership
(LP) and Limited Liability Partnership (LLP), we wrote this article
to give you a general idea of the three kinds of Partnership, and to
help you decide which one is fit for you when you consider to set up
your own business entity.
Generally, a partnership is a business arrangement where
two or more people (who are not husband and wife) are owners of a business.
There are three kinds of partnerships: General Partnership, Limited
Partnership (LP) and Limited Liability Partnership (LLP). The major
differences between them are indicted as follows:
A. Partner’s authority and liability
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General Partnership
A general partnership is one in which all of the partners have the
ability to actively manage or control the business. This means that
every owner has authority to make decisions about how the business
is run as well as the authority to make legally binding decisions.
Unless the partners have a partnership agreement, each partner will
have equal authority.
Partners in a general partnership don't have any limit on their personal
responsibility for the debts of the business. This means that the
partner could lose more than just his investment in the business –
personal assets would have to be used to pay business debts if necessary.
Each partner in a general partnership is also "jointly and severably"
liable for debts of the business. Joint and severable liability means
is that each partner is equally liable for the debts of the business,
but each is also totally liable. So if a creditor can't get what he
is owed by one or more of the partners, he can collect it from another
partner, even if that partner has already paid his share of the total
debt. If someone sues your partnership and obtains a large judgment,
and your partner doesn't have the money to pay his share of it, you
will have to pay the entire amount. In anther word, each general partner
is exposed to claims based upon the promises, actions, or omissions
of the other general partners, and well as of all the agents, including
employees, of the partnership.
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Limited Partnership
A limited partnership has both limited and general partners. A limited
partner is one who does not have total responsibility for the debts
of the partnership. The most a limited partner can lose is his investment
in the business. The trade off for this limited liability is a lack
of management control: A limited partner does not have the authority
to run the business. He is really more or less an investor in the
business.
A limited partnership must have at least one general partner. The
general partner or partners are responsible for running the business.
They have control over the day-to-day management of the business and
have the authority to make legally binding business decisions. The
partnership agreement will specify exactly which partner or partners
have certain responsibilities and which have certain authority. General
partners are also subject to unlimited personal liability for the
debts of the business. The general partners of a limited partnership
are also jointly and severably liable for the debts of the business,
just like partners in a general partnership.
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Limited Liability Partnership (also referred
as Registered Limited Liability Partnership)
A limited liability partnership, like a limited liability company,
and unlike a general partnership, provides that no partner is individually
liable, directly or indirectly, by contribution, indemnity, or otherwise,
for debts and obligations of the partnership. Further, a partner in
a LLP is not individually liable for debts and obligations of the
partnership arising from errors, omissions, negligence, incompetence,
or malfeasance committed in the course of the partnership business
(while the partnership is a LLP) by another partner or a representative
of the partnership not working under the protected partner's supervision
or direction at the time the claimed act occurred, unless the protected
partner 1) was directly involved in the specific activity in which
the claimed act was committed or 2) had notice or knowledge of the
claimed act at the time of occurrence and then failed to take reasonable
steps to prevent or cure the claimed act.
A partnership still remains an entity which can be sued for the acts
or omissions of one of its partners, and the partnership assets would
be a source for recovery by the plaintiff. In addition, the Texas
LLP law provides that a LLP must carry at least $100,000 of liability
insurance of a kind that is designed to cover the kind of act for
which liability is limited by the LLP provisions or must segregate
cash or cash equivalents in such amount to satisfy any judgment for
the kind of act for which liability is limited by the LLP provisions.
B. Filing requirement
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General Partnership
Unlike a corporation, you do not need to file any documents with the
state to make your business a general partnership. A general partnership
is created by default, unless the business is specifically formed
as some other type of business entity, such as a corporation, a limited
liability company, or a limited partnership.
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Limited Partnership
A Limited Partnership (LP) is different from a general partnership
in that it requires a partnership agreement. Some information about
the business and the partners must be filed with the appropriate state
agency (usually the secretary of state). Under Texas Revised Limited
Partnership Act that governs the Limited Partnership in the state
of Texas, to form a LP, the partners must enter into a partnership
agreement and one or more partners, including all of the general partners,
must execute a certificate of limited partnership. The filing fee
$750 and the certificate shall be filed with the secretary of state.
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Limited Liability Partnership
In Texas, the Limited Liability Partnership (LLP, also referred as
RLLP) does not have a comprehensive stature governing it, but rather
is set forth in one section of the Texas statute governing general
partnerships. To become a LLP in Texas, a partnership must file an
application with the Secretary of State. It also requires (a) annually
file a report with the Secretary of State; (b) annually pay a fee
of $200 per partner to the Secretary of State, and (c) maintain a
$100,000 liability insurance policy.
To ensure that third parties are aware of the limitation on liability,
the partnership name is required to include the words "registered
limited liability partnership" or the abbreviation "L.L.P.
" Please also note that all general partnerships may elect to
be limited liability partnership, not just personal service partnerships.
With regard to the tax issue, all of the three kinds of partnership
are taxed under the partnership taxation rules. Unlike the limited
liability company (LLC) or Professional Service Corporation (P.C.),
the Partnership does not need to pay the franchise tax. For example,
in Texas, the Partnership does not pay the Texas franchise tax of
4.5% of earnings. In addition, the Partnership is free from the double
taxation that applies to C corporations.
The detailed difference on taxation between the Partnership, S and C Corporations
will be discussed in the next article.
----- This article is provided by Tao Zhang, Attorney
at Law, Zhang & Associates, P.C.
(02/24/2004)
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