Partnerships

Partnerships are perhaps one of the simplest and easiest to construct forms of business entities after sole proprietorships. So simple that business partnerships can even exist without a written agreement or oral consent. Any for-profit business entity meeting the basic criteria of a partnership business model can be merely implied as a partnership.

Still, despite all this, business partnerships could sometimes turn out to be complex structures. Business partnership matters such as creation, organization, management, and dissolution often involve legal technicalities. This is why hiring an attorney specializing in business partnership matters should always be preferred.

But to help you get started, this article covers a detailed summary of some important concepts related to business partnerships. Once you are done reading this article, you can always call for an appointment with one of our attorneys at Attorneys Real Estate Group. Our team would love to assist you in planning your next move.

What is a partnership?

A partnership is a formal arrangement between two or more persons who agree to conduct business activities and share their profits and losses.

While a partnership agreement prescribes the exact responsibilities of each partner, capital employed, and percentage of sharing profit and loss, it could also be otherwise. In general cases, all partners in a business partnership equally share any profits and losses incurred by it.

Nonetheless, business partnerships can take several forms or types of organizations. Each business cooperation then defines each partner’s involvement in the cooperation’s business and exposure to liabilities.

Laws that govern partnerships – Federal, State or both

In most cases, state law usually prevails when governing the different stages of business cooperation. State laws govern the creation, organization, and dissolution of partnerships. However, because most states today have adopted the Uniform Partnership Act, they tend to be almost the same in these states.

The extent of federal statutes governing partnership laws remains quite minimal, at least in most cases. The only exceptions where the federal law addresses matters related to a business partnership are –

• In the case of diversity actions. Diversity action is a type of civil procedure in a civil case that involves parties that are either citizens of different states within the US or non-US citizens.
• The partnership agreement contains a provision that, specifically by choice, designates implementing federal law.
• For federal tax purposes and their application to a partnership.

Characteristics of a partnership

As stated in the Uniform Partnership Act (UPA), the definition of a partnership clearly mentions its characteristics. The Uniform Partnership Act (UPA) defines partnership as –

“An association of two or more persons to carry on as co-owners of a business for profit formed under this act…”.

Thus, a partnership is –

• A relationship between two or more persons.
  This means that any business owned by a single person can be anything but not a partnership. For a partnership, having at least two persons is mandatory.
• They aim to carry on as co-owners.
  In other words, this means becoming joint owners, sharing control, and having joint authority to conduct various business affairs. This characteristic of becoming co-owners also extends to being jointly and severally liable for the partnership’s debts.
• Business for profit.
  The main purpose of forming a partnership is to engage in for-profit activities. This means that a not-for-profit entity or organization can never be formed as a partnership. Further, this part of the definition emphasizes only profit sharing. There are exceptions to sharing a partnership’s liabilities and losses in some cases.

What is a ‘Person’?

A person, as mentioned in the definition of cooperation, can include –

• An individual,
• Any group of individuals,
• A company or companies, and
• A corporation or corporation.

Purpose of a cooperation agreement

Business cooperation is simple to form. A simple handshake or a mere oral agreement can initiate cooperation between two or more persons.

But business cooperation isn’t separate entities from their owners. Due to this reason, all partners can jointly and severally be liable for all their actions. This means that any good or bad actions of one partner alone are binding on the entire partnership or all the other partners. Sometimes, this can create complex situations and disputes between the partners.

To avoid such issues, a well-drafted partnership agreement becomes necessary. A formal cooperation agreement or cooperation contract is legally binding between the partners. It is a framework that defines, establishes, and governs the rights and responsibilities of each partner in a partnership concern.

Without a formal cooperation agreement or contract, the Uniform Partnership Act (UPA) regulations govern the partnership.

While there is no legal requirement to have a formal partnership agreement, nor is it required to register cooperation, a formal cooperation agreement can also be useful for other purposes. For example, it can be used to obtain any specific license or permission to conduct any specific type of business.

A formal cooperation agreement or cooperation contract is legally binding between the partners.

Partner relationship – Express or Implied

A partner relationship can be formed in either of the two ways. It can be either expressed or implied.

Express partnership

An express relationship is when two or more persons form a cooperation through an oral and written agreement.

Implied partnership

Cooperation through an implied relationship exists even without any explicit terms or statements. An implied relationship exists because –

• the parties either assumed or their actions presumed the presence of a business relationship between them, and
• a denial of such a relationship could result in the infringement of the rights of one party.

Determining the existence of a partnership

To determine whether a cooperation relationship exists or not between any two or more persons, a court will consider all the following prerequisites –

1. The intention of the parties involved,
2. Sharing of profits and losses by the partners,
3. Joint control and organization of the business affairs,
4. Amount of capital invested by each partner, and
5. Common ownership of assets and property.

Types of cooperation

Four types of cooperation exist in the US. These are –

1. Limited partnership (LP)
2. General partnership
3. Limited liability partnership (LLP)
4. Limited liability limited partnership (LLLP)

1. General partnership

General cooperation is the simplest of all other types of cooperation. Just signing a simple cooperation agreement could create a general partnership. Although it is easy to create and dissolve, the administrative part of it can be very complex.

This is because, in general, cooperation, unless the cooperation agreement states otherwise, all partners equally own the business. This means having an independent authority to bind the firm. Consequently, it creates a huge responsibility for each partner as well. Even a slightly wrong decision or miscalculating risks could create trouble for all the firm’s other partners.

As for the profits, the general rule is that all partners equally share in the profits made by the business. For the liability part, each partner has total liability in a general partnership. In simple words, each partner is personally liable for any debts and other obligations incurred by the partnership.

2. Limited partnership (LP)

A limited partnership is a partnership model that combines general and silent partners. At least one of the partners should be a general partner. Similarly, at least one of the partners, among others, including a general partner, should be a silent partner.

A general partner actively participates in managing the affairs of the cooperation business. He holds full personal liability for all actions done to conduct the business.

The partner whose interest in the cooperation is limited to the amount of investment or capital induced in the business is known as a silent partner. Silent partners are not responsible for the debts and liabilities of the business. This is because they do not take active control or participate in the day-to-day affairs of managing the cooperation business.

3. Limited liability partnership (LLP)

Certain professionals, such as lawyers, accountants, and doctors, can offer their services through a limited liability partnership.

A limited liability partnership is formed and operated much like a general cooperation model but with a slight difference.

While all partners hold managing rights of the business and share full responsibility for its debts and liabilities, no partner holds responsibility for any wrongdoings and misconduct of any other partner.

Not all states in the US allow the creation of limited liability cooperation. Those who do, allow it to be used as business entities for some specific professions.

4. Limited liability limited partnership (LLLP)

A limited liability limited partnership model isn’t a very old partnership model. For this reason, it isn’t currently authorized in all states of the US.

An LLLP has at least one general partner that holds managing rights to conduct the day-to-day business affairs of the cooperation. However, in an LLLP model, each partner, including the general partner, holds limited liability.

A cooperation dispute attorney can help you understand whether or not forming an LLLP will suit your business purpose.

Types of Partners in business cooperation

Not all partners in a business cooperation concern hold the same designations, ownership control, rights, responsibilities, and liabilities. These things depend on the type of partnership model employed by the partners for conducting their business.

A cooperation can have the following types of partners –

1. General Partner
2. Silent partner (Limited partner)
3. Partners by level

1. General partners

General partners are the ones who actively take control and participate in the daily affairs of the cooperation’s business. Due to this, they hold full personal liability for all debts, liabilities, and other legal obligations of the cooperation firm. However, some cooperation types may sometimes restrict a general partner’s liability.

2. Silent partner

A silent partner or a limited partner holds limited liability in cooperation. His interest or liability in the cooperation is restricted to the amount of his investment only. He does not hold any rights to manage or actively control any of the cooperation’s affairs.

3. Partners by level

Partners may be separated by their levels in some limited liability cooperation, especially those run by certain professionals such as doctors, accountants, and lawyers.

The designation of a partner’s level could be based on several factors. These can include –

• Their experience and seniority in the firm classify them as junior or senior partners.
• Amount of capital employed or clients brought into the firm by a partner classifying them as a profit-sharing partner.
• A salaried partner, in most cases, is referred to as an associate partner. As the name suggests, salaried partners receive salaries and other benefits they are entitled to as firm employees. They do not share the profits of the partnership.

Remember that a partner can hold various multiple levels at the same time. For instance, senior partners can receive a salary, or a junior partner who shares in the firm’s profits.

Tax treatment of business cooperation

The IRS does not exclusively tax the income of a partnership concern. However, this does not mean that a partnership does not have any reporting and form filing requirements.

Income tax treatment for business partnerships

A partnership does not pay income taxes directly. Instead, its profits or losses pass through to its partners. This way, each partner reports its share of profit or loss from the partnership on its tax return.

Reporting and form filing by business partnerships

A cooperation concern is separate from its partners for tax reporting and forms filing purposes.

For a business cooperation as an entity itself,

• It must file an annual information return form. This form mentions the partnership’s income, deductions, gains, losses, etc., incurred during the year.
• It may need to file forms for the annual return of income, employment taxes, and excise taxes.

For an individual in a business cooperation,

they may need to file forms for –

• income tax,
• self-employment tax,
• estimated tax, and
• international tax.

Partnership disputes and cooperation dissolution attorney near me

Cooperation tend to be very fragile business entities. Various reasons and changes of circumstances can result in unanticipated and untimely cessation of some business activities or an overall termination of the cooperation.

Some examples where cooperation needs to be dissolved are,

• A federal or state ban on the type of business the cooperation concern conducts.
• The partnership cannot renew a license essential to continue all or any specific segment of its business.
• Any partner seeks withdrawal, passes away, or becomes unable or incapacitated.
• New partner joining into an existing partnership.
• Cooperation declaring bankruptcy.
• Cooperation merging with another business entity.
• A likely change in the partnership agreement is a general partner becoming a silent partner and vice versa.

Therefore, whether you are planning to form a cooperation or going through any partnership dispute and planning a partnership dissolution, seeking the professional expertise of a cooperation dispute lawyer is a must. Luckily for you, Attorneys Real Estate Group has a team of highly capable cooperation dispute attorneys.

Our partnership dispute lawyers specialize in settling complicated disputes and creating feasible cooperation dissolution agreements that favor each partner. We look forward to welcoming you soon.