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- The silent partnership is a form of internal company under German commercial law, regulated in §§ 230-237 HGB.
- Silent partners do not appear externally, while the business owner acts alone in legal transactions.
- No minimum capital required; formation by articles of association, which can be oral or written.
- The silent partner has no right to a say, but has statutory rights of control, such as access to the annual financial statements.
- The tax treatment varies between typical and atypical silent partnerships with different tax consequences.
- Advantages: flexible financing, high level of discretion, no disclosure obligations and loss limitation for the silent partner.
- The silent partnership is often used in family businesses and is attractive for investors without full risks.
Definition and legal basis:
The silent partnership is a special form of internal company under German commercial law. It is regulated in Sections 230-237 of the German Commercial Code (HGB). In this form of company, the silent partner participates in the commercial business of another party with a capital contribution without appearing externally. The owner of the commercial enterprise, also known as the business owner, manages the business alone and acts as the sole entrepreneur in legal transactions.
The silent partnership is not a company within the meaning of company law and has no legal personality of its own. It only exists in the internal relationship between the business owner and the silent partner. This structure makes it possible to raise capital for a company without relinquishing control of the business or changing the company structure externally.
Foundation and formal requirements:
No minimum capital is required to form a silent partnership. It is created by the conclusion of a partnership agreement between the business owner and the silent partner. This agreement is not subject to any special formal requirements and can even be concluded verbally. For reasons of proof, however, a written contract is recommended.
The articles of association should regulate the following points:
– Amount and type of contribution by the silent partner
– Participation in profit and loss
– Information and control rights of the silent partner
– Term of the participation and termination modalities
– Provisions in the event of insolvency or liquidation
An entry in the commercial register is not required, as the silent partnership does not appear externally. This contributes to the discretion of this form of participation.
Rights and obligations of the parties involved:
The silent partner is obliged to make the agreed contribution. This can be in the form of cash, non-cash assets or services. In return, he receives a right to share in the company’s profits. Loss participation can be contractually excluded, but is limited to the amount of the contribution as standard.
In principle, the silent partner has no say in the management of the company. However, they are entitled to statutory control rights, in particular the right to inspect the annual financial statements and audit their accuracy. These rights can be contractually extended, but not completely excluded.
The business owner manages the company independently and is solely liable for the liabilities of the business. He is obliged to properly manage the capital contributed by the silent partner and to pay out the agreed share of profits.
Tax treatment:
The tax treatment of the silent partnership depends on whether it is a typical or atypical silent partnership:
In the case of the typical silent partnership, the silent partner’s profit share is treated as income from capital assets and is subject to withholding tax. The business owner can deduct the payments to the silent partner as operating expenses.
In the case of an atypical silent partnership, where the silent partner also participates in the hidden reserves and goodwill, the income is classified as commercial income. In this case, a co-entrepreneurship is created and the profits are taxed according to the rules for partnerships.
Advantages and disadvantages of the silent partnership:
Advantages:
– Flexible financing options without changing the corporate structure
– No disclosure obligations, high level of discretion
– No minimum capital requirements
– Possibility of loss limitation for the silent partner
– Tax advantages, especially for the typical silent partnership
Disadvantages:
– Limited control and co-determination rights of the silent partner
– Potential conflicts of interest between business owner and silent partner
– Complex tax treatment, particularly in the case of atypical silent partnerships
– Risk of reclassification to another company form if the silent partner’s participation is too high
Areas of application and practical significance:
The silent partnership is particularly suitable for companies that require additional capital without relinquishing control of the business. It is often used in family businesses to allow family members to participate in the company’s success without granting them formal shareholder rights.
The silent partnership can also be attractive for investors, as it offers an opportunity to invest in a company without bearing the full entrepreneurial risks. In practice, the silent partnership is often used as an instrument for employee participation or to finance start-ups and growth companies.
In summary, it can be said that the silent partnership is a flexible and discreet form of company participation. It makes it possible to raise capital and involve investors without changing the corporate structure externally. The precise structuring of the participation and careful consideration of tax aspects are decisive for the successful use of this form of company.
