As a hybrid legal form, the GmbH & Co. KG is a special form of limited partnership (KG) in which the personally liable partner is a limited liability company (GmbH). The general partner can also be an entrepreneurial company (haftungsbeschränkt) as a “small GmbH”, the company then trades as “UG (haftungsbeschränkt) & Co. KG”.
Foundation of GmbH & Co. KG
The GmbH & Co. KG is a transparent company for tax purposes, i.e. it is not itself subject to corporation tax, but profits and losses are attributed to the partners, who must declare these in their personal income tax return; however, at the request of the company, taxation as a corporation can also be chosen (§ 1a KStG).
Under civil law, the GmbH & Co. KG allows flexible structuring of the articles of association and the ownership structure between the partners. It can be structured as a fund, family or public company. A special structure variant is the unitary partnership, in which the limited partnership acquires the shares of its general partner after formation (Section 170 (2) HGB).
How do you set up a GmbH & Co. KG?
The following steps are required to form a GmbH & Co. KG:
Formation of a GmbH as a personally liable partner. To do this, a partnership agreement must be notarized and the GmbH must be entered in the commercial register. The minimum share capital is EUR 25,000, of which at least half must be paid in. In addition, the GmbH must appoint one or more managing directors to represent the company externally.
Formation of a limited partnership: For this purpose, a partnership agreement must be concluded between the GmbH and at least one limited partner. In principle, it can be concluded in any form, but should at least be in writing. In some cases, it must also be notarized. The limited partners are only liable to the extent of their liability, which can be freely agreed. The amount of liability and deposits may differ.
The KG must also be applied for and entered in the commercial register, whereby the registration court of the GmbH must be stated. Since the register court of the GmbH must be stated on the register sheet of the KG, the court often waits for the GmbH to be pre-registered in the case of parallel registration procedures. The entry is made under the name of the KG with the addition “GmbH & Co.” and the addition of the legal form “KG”. Upon registration, the GmbH & Co. KG is created as a separate legal entity.
A GmbH & Co. KG can also be formed indirectly by a GmbH joining an existing KG or OHG as a personally liable partner. In this case, the articles of association of the KG or OHG must be amended accordingly and the entry of the GmbH & Co. KG must be filed with the commercial register.
The registration of the GmbH & Co. KG requires the following information:
– Company name, registered office and register court of the general partner GmbH
– the company name, the registered office and the register court of the KG; the domestic business address (or business address in the EU) must be the same as the registered office; only the actual registered office is important, as partnerships cannot have different registered offices under the articles of association and the actual registered office. However, the registered office of the company may differ from that of the general partner GmbH.
– The addition “GmbH & Co.” and the addition of the legal form “KG” in the name of the KG
– the surnames, first names, dates of birth, places of residence and amounts of liability of the limited partners
– the general power of representation of the GmbH for the KG and any special powers of representation of individual general partners
– the exemption of the GmbH from the restrictions of Section 181 BGB, if granted, and the scope thereof
– The assurance that the KG has not yet been entered in the commercial register or partnership register.
The registration must be submitted by all partners of the KG, i.e. also by the limited partners, in publicly notarized form. The signatures must therefore be notarized, whereby public notarization by means of video communication is also permitted in accordance with Section 40a of the Notarization Act. Powers of attorney must also be notarized. For the GmbH, its managing directors sign as authorized representatives; the registration can also be declared for the GmbH by an authorized signatory, as the company of the GmbH is not affected.