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The silent partnership in the Austrian and German company law, a special form of association of persons. It belongs to the partnership, however, is not a trading company. Without further agreement, the silent partner, has the character of an obligation and the less of a legal partnership relationship in the strict sense of the statutory design.

The Swiss company law, however, does not know the Institute of breastfeeding society. However, it is possible a simple society in such a way that there is a silence society that is largely identical to the same institute other legal systems.

Formation

A silent partnership is formed when a natural person or legal person involved in the commercial enterprise of another with a capital contribution. The insert in the silent company may also be provided in the form of work performance.

The silent partnership is an internal company. To an outsider, it is not usually recognizable. The situation is different for the silent participation in a corporation. Here the participation of a silent partner, to be published.

Legal framework

The regulations can be found in § § 230-236 of the Commercial Code, for Austria in § § 179-188 of the Commercial Code.

Rights of the silent partner

The rights and obligations of the silent partner are governed solely by the internal relationship. The silent partner participates in the loss up to the amount of his investment in part ( § 232 section 2 HGB ). Often the loss of participation in the partnership agreement but excluded ( § 231 HGB). The insert can according to § 706 para 3 of the Civil Code, either in money or in kind or in services exist. For the allocation of the deposit he usually receives a share of the profits. Externally, the silent partner is self creditors of the company with profit sharing. The silent partner does not participate in the management, unless otherwise agreed. He has the right to control as a limited partner and is therefore entitled to audit the financial statements. In the event of insolvency of the company the silent partner takes the legal position of a creditor.

Tax treatment of the silent partnership

Typical silent partnership

Treatment of income in the silent partners

Here the silent partner 's share in the profits and depending on the agreement at the loss of the company, but not on the assets of the Company. The profits he must be treated as income from capital assets tax (§ 20 Section 1 No. 4 Income Tax Act) and any loss participation can acc. § 20 Section 9 sentence 1 ITA basically do not settle as a business expense. According to the latest case-law, it is possible if specifically agreed that even a negative contribution account can be created. Thus, losses that exceed the deposit, reduce the deposit account. Subsequent profits must be re- used to increase the deposit account ( up to the amount of the conditional insert).

Treatment of payments under the trade trader

The payments to the ( typical ) silent partner of the holder of the commercial business operating expenses dar.

Atypical silent partnership

Become the silent partners acknowledged as extensive assets and control rights that he # 2 Income Tax Act applies as co-entrepreneurs in terms of § 15 I 1, one speaks of an atypical silent partnership. The atypical silent partner is not only involved in the profit and loss, but also the assets of the Company, including fixed assets, the hidden reserves and, if the business value. Agreement it may also be held liable for losses above the level of its individual investment. He has some say and control rights. Fiscally he achieved as co-entrepreneurs business income (§ 15 Section 1 No. 2 ITA).

The involvement of an atypical silent partner in a limited liability leads to these tax advantages in the trade tax. The limited liability company in connection with an atypical silent partnership will trade tax practically treated as a partnership, that is, allowance and graduation come to approach (since 2008, no more differentiation ).

Participating loan

The shareholder loan is not agreed with a fixed interest rate, but with an investment in the sales or profits of the borrower.

A dormant company must be distinguished from a participating loan. In the silent participation of the shareholders intended by the deposit of the joint operation of a commercial enterprise. When a loan is to start from a pure self-interest. It lacks the typical silent partnership common purpose, namely the connection of the owner of the trading business with the silent partner for operating their business.

Income Tax achieved a lender capital income (§ 20 Section 1 No. 4 ITA).

Benefits

The silent society does not outwardly in appearance, since it is not registered in the commercial register nor be seen in the company name. An entrepreneur urgent long-term financial needs has and is unable to satisfy a bank or wants to can find a silent partner. With a loan financing interest accrues, regardless of the profit situation, the silent partner, however, only receives a positive result of a profit share.

Formalities, rights and obligations

A silent company may be established form free, even if it is advisable to take a written partnership agreement.