The differences between: Partnership, Limited Partnership and Limited Liability Partnership

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

  1. 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.
  2. 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.
  3. 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
  1. 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.
  2. 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.
  3. 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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