Posted on 6th Jan 2011 - Share this blog/article
The purpose of this Memorandum is to give details of an alternative medium for carrying on business – the Limited Liability Partnership (“LLP”). This medium has been available since 6 April 2001, and it offers some interesting advantages, both for people who are already in business and for people who are about to set up in business.
An LLP is in some ways a “cross” between a conventional partnership and a company.
One of the problems of a conventional partnership is that each partner has unlimited liability for all the debts of the partnership. Operating through a limited liability company overcomes this problem, of course, but one of the draw-backs is that a company is taxed as a separate entity. This can lead to high National Insurance contributions on drawing remuneration and a possible double charge to Capital Gains Tax when a company realises a capital gain and the shareholders wish to share in the benefit.
A partner in an LLP has liability only to the extent of his (or her) investment in the LLP unless negligence is involved. Although an LLP is a separate entity, tax is normally charged on a “transparent” basis, i.e. profits are taxed on each partner.
In the case of an LLP which carries on a trade or profession or business, the “double Capital Gains Tax effect” which applies to companies is avoided (whereby a gain is taxed in the company and there is further tax to pay if profits are removed from the company).
An LLP has to be registered at Companies House, and it has to file audited accounts along similar lines to a company. This therefore distinguishes LLPs from ordinary partnerships who have no statutory obligation to publish their accounts. However small LLPs can file abbreviated accounts which do not contain a full balance sheet and profit and loss account. Currently to qualify for abbreviated accounts the LLP must meet at least two of the following conditions:
The minimum number of partners is two, and these can be individuals or companies. An LLP does not have share capital, nor does it have a Memorandum and Articles of Association.
An LLP does not have a company secretary, but it does need two designated partners to deal with legal and compliance formalities on an ongoing basis.
It is permissible to have a partners’, or what the legislation characterises members’, agreement setting out the terms on which the partnership operates. If there is no agreement, or if there is only a limited agreement, the LLP will be deemed to operate in accordance with terms laid down in the Limited Liability Partnership Act 2000 (and various Statutory Regulations).
The individual partners can inject capital into the LLP in the same way as with a conventional partnership. They can borrow this money, if desired, and obtain tax relief on interest paid, assuming that certain criteria are met.
The LLP can itself borrow money or operate overdraft facilities. In many cases, of course, the bank will require collateral or personal guarantees from the individual partners.
A partner can join or leave an LLP without undue formalities. However, special rules apply if the LLP goes into liquidation. Many of the provisions of the Insolvency Act 1986 apply to an LLP which goes into liquidation.
Yes, a LLP can own freehold and leasehold property in its own right, unlike a conventional partnership which cannot own land because it is not a separate legal entity of its own.
Each individual partner will be taxed to Income Tax on his or her share of the taxable profit. The basis of assessment is similar to that which applies to a conventional partnership. The LLP has to file an annual tax return and each partner also has to include relevant details on his (or her) own self assessment tax return form. National Insurance Contributions are payable under class 2 and class 4, i.e. on the self-employed basis.
If the LLP disposes of a capital asset any gain or loss will be allocated to each of the partners.
If the partners have “overdrawn” loan accounts, there is no special tax liability – contrast this with the treatment of directors’ loan accounts where both the company and (if the loan exceeds £5,000) the director may be liable to tax.
A company can be a member. If so, it will pay Corporation Tax on its share of the profits including gains, and that element of the profits will be computed on normal Corporation Tax principles (including the availability of indexation allowance).
If a partner leaves the LLP, this will constitute a disposal of the partner’s interest in the various assets of the LLP. This has capital gains tax consequences, but for trading partnerships the gain may be within entrepreneurs’ relief (subject to the detailed rules of that relief). The rate of tax under entrepreneurs’ relief is 10%.
It should be particularly noted that the “transparent” tax treatment will not apply if the LLP does not carry on a trade, profession or business, or if it ceases to do so. This can pose problems when a LLP ceases to trade, prior to liquidation. It also means that a LLP formed initially to hold a property can be treated as a company, depending on the facts, and may switch to be treated as a partnership if the property is later used used for a trade or business. However there is no capital gains tax event when this change of status takes place and this is thought to offer the opportunity to eliminate any gain on the property in the reverse situation, ie initial use for trade and subsequent holding of the property with no business carried on.
If a LLP makes tax losses when carrying on a trade or profession, these will be treated in the usual way as for partnerships generally. A partner’s share of trading losses can normally be set against his or her other income of the same tax year or that of the previous tax year. Losses on the disposal of partnership assets are treated as losses for capital gains tax purposes of the partners, divided between them in their capital sharing ratios.
If a trade or profession is being carried on in a normal partnership and is then transferred to a LLP there should be few problems, as long as the entire business and assets are transferred. The transfer will not give rise to a disposal for Capital Gains Tax purposes provided that certain conditions are met.
The following points should be noted in these circumstances:-
It should be noted, however, that the costs of conversion to a LLP may not fully qualify for tax relief.
Are there any other points to bear in mind?
If a LLP creates a charge or mortgage over any of its assets, details must be registered at Companies House. If this is not done within 21 days, the charge will be void against creditors, an administrator or a liquidator.
It is also necessary to pay attention to contractual arrangements.
If the LLP replaces an existing business carried on as a sole trade or as a conventional partnership, then the following matters will need to be dealt with (after consulting the LLP’s legal advisers).
The LLP concept has proved popular so far, especially with the construction industry, pharmacies and garages. The concept has also been embraced by professionals, including solicitors, accountants, engineers and surveyors.
LLPs are also being used in cases where a trust becomes involved in carrying on a business. The availability of limited liability via an LLP can be very useful in these circumstances.
As previously mentioned, considerable care is needed when setting up a LLP, and – before reaching a final decision – the tax and legal implications should be fully researched.
There are no special tax reliefs for “disincorporation” of a LLP, so a change of mind after setting up a LLP could prove costly.
It should be emphasised that the profits of a LLP are taxed on the respective partners and may attract Income Tax liability at up to 50% in the current and future fiscal years, as well as National Insurance Contributions. Companies, which are an alternative vehicle, are taxed as an entity in their own right and from April 2011, the small companies’ rate of corporation tax will be 20% and the main rate (for profits over £1.5m) will be 26%. In addition, there are a number of anti-avoidance rules to be considered when forming a LLP.
We will be happy to advise whether a LLP would be advantageous in your particular circumstances.
FOR GENERAL INFORMATION ONLY
Please note that this Memorandum is not intended to give specific technical advice and it should not be construed as doing so. It is designed to alert clients to some of the issues. It is not intended to give exhaustive coverage of the topic.
Professional advice should always be sought before action is either taken or refrained from as a result of information contained herein.