Limited partnership (KG) in tax law

The KG is one of the partnerships. In contrast to the OHG, a KG differentiates between the general partner with personal and unlimited liability and the limited partner with limited liability to his capital contribution (cf. § 161 I HGB). The purpose of the KG is to operate a commercial trade (OHG).
Für die KG sind insbesondere die §§ 161 bis 177a des HGB maßgeblich, subsidiär gelten auch die §§ 105 bis 160 HGB sowie die §§ 705 ff. BGB. Einkommensteuerrechtlich ist die KG wie die OHG eine typische Co-entrepreneurship, sofern sie den Tatbestandsvoraussetzungen des Gewerbebetriebs gem. § 15 II EStG genügt und gem. § 15 III EStG als Gewerbebetrieb gilt (Intention to make a profit).

The limited partners have a special position. As a rule, they are considered to be co-entrepreneurs, at least if they are entitled to the usual social rights of §§ 161 ff. HGB (control and participation rights) and they therefore meet the criterion of the co-entrepreneur initiative. Conflicts between commercial and tax law arise when limited partners leave the KG, get their contribution back, but the departure is not entered in the commercial register. Then they are still shareholders of the KG according to HGB, but no longer co-entrepreneurs for tax purposes.

A special feature arises for the limited partner in the event of a loss. With Section 15 a of the Income Tax Act, the ability to compensate losses for tax purposes is limited to the amount of his liability under company law (loss compensation). The general partner, like the general partnership partner, is a typical co-entrepreneur, as he, as a management and representative body with personal and unlimited liability, fulfills the requirements of co-entrepreneur initiative and co-entrepreneur risk. In terms of trade tax and sales tax, the KG is an independent taxable entity; she likes to pay taxes. § 5 I GewStG and § 1 UStG.

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