Limited Liability Partnership

However, by virtue of the provisions of sections 14 – 17 of the LLP Act 2000, there are other regulations or legislations which also govern the LLP which will be discussed later on. Foremost amongst these legislations are the Companies Act 2006 and the Partnership Act 1890.

The (LLP) is essentially a general partnership in form, with one central difference, unlike a general partnership, in which individual partners are liable for the partnership’s liabilities, debts and obligations, an LLP safeguards its individual partners against personal liability for certain partnership liabilities.

The LLP Act 2000 is structured into 18 chapters which will be briefly summarised below;

Section 1 establishes the new form of entity and its characteristics.

Sections 2 & 3 set out the requirements for incorporation

Sections 4- 9, are concerned with membership, that is becoming and ceasing to be a member, making of a Limited Liability Partnership agreement and the positions of members as agents of the Limited Liability Partnership.

Sections 10-13, deal with the taxation of the LLP.

Sections 14- 17, provide for the making of regulations, amendments and repeals of other Acts which relates to the LLP.

Sections 18 & 19 contain definitions, commencement and application of the Act.

The basic features of the LLP will be discussed below and it will be determined whether it relates to partnership or company law.

CORPORATE ENTITY.

By virtue of Section 1(2) of the LLP Act 2000, once a Limited Liability Partnership has been incorporated, it becomes a body corporate, with a separate legal personality from its members and it has its own rights and liabilities separate from that of its members.

This is a major difference between the Limited Liability Partnership and a Partnership and this feature is similar to a company. This is because, “General and limited partnerships,(other than Scottish Partnerships)have no legal personality separate to that of their partners, whereas, LLPs, like companies, are corporate bodies and are regarded by the law as a separate legal person to their members” [2]

“The LLP will continue to exist as a separate legal entity, even if the membership is reduced to one (or none), until it is wound-up and dissolved under the Insolvency Act 1986.” [3]

“It will also be the LLP (and not the members of it) which will have rights of recovery from third parties on contractual claims or for loss suffered by it as a result of breaches of duty owed to it. In this respect, the position of the members will be similar to that of the shareholders in a company”. [4]

Also, by virtue of Section 1 (3) of the Limited Liability Partnership Act 2000, the LLP has unlimited capacity. Because of the separate personality, the LLP has the capacity to acquire properties, create fixed and floating charges on its assets which bears a common feature with the company. However, this characteristic, is not available in Partnerships. A Partnership firm cannot create a floating charge over it’s assets.

The LLP has a separate legal entity from its members. As a result, it may enter into contracts,

It can sue and be sued and it can also grant floating charges over its assets in its own name. This

avoids the problems that exist in relation to partnerships, which has no separate legal personality and usually in practice, it is often necessary for every partner to be party to certain documents or litigation, and the creation of

floating charges is not possible because it doesn’t have a separate legal personality.

INCORPORATION

With regards to incorporation, the LLP has components of both Partnership Law as well as Company Law, S 2(1) (a) of the LLP Act 2000 has echoes of both S 7 of the companies Act 2006 and S 1(1) of the Partnership Act 1890.

Section 2 (1) (a) [5] which relates with two or more persons associated for carrying on a lawful business with a view to profit, shares a similarity with Partnership Act 1890 S 1 (1) which provides that, (1) “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.”

However, the other part which provides for the members subscribing their names to an incorporation document and (b) which provides that the incorporation document or a copy of it be delivered to the registrar for registration is similar to Section 7 of the companies act 2006, which provides that,

(1)   A company is formed under this Act by one or more persons—

subscribing their names to a memorandum of association

also, Section 2 (2) [6] is similar to the Companies Act 2006, Section 9 (1),(2) (a)- (d).

Section 3 (1) [7]  which provides that, “The registrar, if satisfied that the requirements of section 2 are complied with, shall—

(a)     Register the documents delivered under that section, and

(b)     Give a certificate that the limited liability partnership is incorporated.” is similar to the Companies Act 2006, Sections 14 and 15.

MEMBERSHIP.

As regards membership, the Limited Liability Partnership shares similarities with both partnership and company Law. And this can be seen from three main points of view, that is, control and management, liability and agency.

With regards to control and management of the Limited Liability Partnership, the members have control and more often than not, they manage the business. This is because there is provision for designated membership, who are in charge of certain definite functions.

“Whilst the LLPAct 2000 establishes (in section 8) the office or role of designated member, and requires there to be two such members, it does not attempt any overall description or definition of the role. The role is essentially that of compliance officer. The duties, responsibilities and powers of the designated members are to be found in a combination of the LLP Act 2000 itself, the Companies Act 2006 and the Insolvency Act 1986. They are concerned principally with requirements of the legislation as to disclosure and notification to the Registrar.” [8]

In partnership, the partners also have direct control and management power over the business. They take part in the management and in the running of the business. However, in Limited partnerships, some of the partners do not have the control and they do not take part in the management of the business, they are mere passive investors.

In company, the directors have management control of the company. In partnership and Limited Liability partnerships, the partners and members are the owners of the business, while in companies; the Directors do not in actual fact have to be the owners of the company. However, if it is a small company the Directors may also be the owner of the company. Also, it is worthy of note that in situations where the business is a large business, it is not compulsory for all the partners and members to take part in the running and management of the business.

In relations to Liability, members of the Limited Liability Partnership have limited liabilities to the extent of their stake in the business. Similarly, In Limited Liability companies, the shareholders have limited liabilities to the extent of their shares in the company in relations to the debt of the company. However, in General partnership, the partners have unlimited liabilities to the debt of the business. Limited partnerships however, the limited partners have limited liability to the extent of their stake in the business, while the General partner in the partnership have unlimited liability.

As regards Agency relationship, there is a bit of similarity between the three and a slight difference between them. In a Limited Liability Partnership, the members are agents of the limited liability partnership but they are not agents of the other members, Section 6 (1), (2) (a)& (b) [9] , this is similar to Directors of a company, who are also agents of the company but are not agents of the other Directors unlike the partnership who are agents of the partnership as well as agents of the other partners. Partnership Act 1890, Section 5 & 6

TAXATION

As earlier stated, the Limited Liability Partnership is taxed like a Partnership. “Section 10 of the LLP Act 2000, inserting ICTA 1988, s 118ZA (now superseded by ITTOIA 2005, s 863), is the main provision in the LLP Act 2000 covering the annual taxation of an LLP, and runs to no more than seven lines. It operates by stating that a trade, profession or business carried on by an LLP shall be treated as though carried on in partnership by its members. The effect of this section is to ensure that members of an LLP are taxed under the self-assessment rules as though they were partners in a partnership.” [10]

This means that even though members of an LLP enjoy the benefit of limited liability, the law also protect them with regards to taxation. That is instead of both the members and the LLP to get taxed like a company and its Directors/ and shareholders, that pay Corporation tax as well as income tax, only the members get taxed based on the profit made, which is similar to a partnership.

Also, the law protects the LLP in the sense that, although an LLP has a separate legal personality, capable of owning assets, which rationally should be taxed for any profit made, the firm is not taxed; instead the law followed the position of the Partnership Law which has no separate personality.

“The basis of taxation for an LLP will therefore follow the same rules as apply to partnerships and partners. Thus, an LLP will be required to submit an annual tax return to HMRC which sets out the tax figures relevant to that fiscal year. An LLP member will be taxed upon the profits arising for the accounting period ending during the relevant tax year. For example, if an LLP has an accounting reference date of 30 April, the annual accounts to 30 April 2010 fall in the tax year 2010/11 (period 6 April 2010 to 5 April 2011), and will therefore form the basis of the Limited Liability Partnership 2010/11 tax return. A partnership tax return requires details of the profit and loss account and, normally, the balance sheet to be set out using HMRC standard accounts information format. The same will apply to a Limited Liability Partnership, except that the balance sheet information will become mandatory as the balance sheet will form part of the accounts which will need to be filed annually with Companies House. For partnerships and Limited Liability Partnerships with a turnover in excess of 15 million, the standard accounts information does not have to be completed in full, but separate taxation computations and a set of the firm accounts must accompany the tax return.” [11]

INSOLVENCY AND WINDING UP.

“The scheme of the LLP legislation is to apply to Limited Liability Partnerships the statutory provisions relating to the insolvency and winding up of companies (including the CDDA 1986) with modifications. Unless otherwise stated, references to the Insolvency Act 1986 and the CDDA 1986 by the LLP Regulations 2001 provides for application to Limited Liability Partnerships, and references to the Companies Act 2006 for application to Limited Liability Partnerships is provided for by the Limited Liability Partnerships Regulations (Application of Companies Act 2006) Regulations 2009. This reflects the stated intention of the Government when introducing LLPs in 2000 that is they are, in most respects, to be treated as corporate entities.” [12]

APPLICATION OF THE COMPANIES ACT

By virtue of section 15 of the LLP Act 2000, Company law and partnership law were expressly provided for in a limited liability partnership. This section has been exercised by the incorporation, application and amendment of the following regulations, which would be looked into below,

Limited Liability Partnerships Regulations 2001, SI 2001/1090.

The Regulations apply to LLPs, with suitable modifications to reveal the structure of LLPs, a great number of the provisions contained within the Companies Acts 1985 and 1989, the Insolvency Act 1986 and the Company Directors Disqualification Act 1986.

The Regulations amend the relevant primary legislation by way of general modifications which, provide that references to a company include references to a limited liability partnership, and references to a director or officer include a reference to a member of an LLP.

Regulations 2008, SI 2008/497

These Regulations determine the penalties and fines that companies must pay to the registrar of companies if they file their annual accounts and reports late, and it relates to LLP by providing for the penalties and fines the LLPs must pay if they deliver their accounts and auditors’ reports late.

Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008, SI 2008/1911.

These Regulations replace provisions of the Limited Liability Partnerships Regulations 2001 (“the 2001 Regulations”) and the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (“the 2004 Regulations”) which apply to LLPs provisions of the Companies Act 1985  and the Companies (Northern Ireland) Order 1986 relating to accounts and audit.

Small Limited Liability Partnerships (Accounts) Regulations 2008, SI 2008/1912.

These Regulations identify the form and content of the accounts of LLPs subject to the small LLPs regime under Part 15 of the Companies Act 2006 as it applied to LLPs with modifications by the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 (SI 2008/1911).

Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008, SI 2008/1913.

These Regulations relate to the form and content of the accounts of partnerships (LLPs), other than those subject to the small LLPs regime, under Part 15 of the Companies Act 2006, as it applied to LLPs with modifications by the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 (SI 2008/1911). They do this, by applying to LLPs, with modifications, provisions of the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 (SI 2008/410).

Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009, SI 2009/1804.

Part 2 of the Regulations applies to LLPs provisions of Part 4 of the 2006 Act on the formalities of doing business.

Part 3 of the Regulations applies to LLPs provisions of Part 5 of the 2006 Act on names and trading disclosures.

Part 4 of the Regulations applies to LLPs provisions of Part 6 of the 2006 Act on registered offices.

Part 5 of the Regulations applies to LLPs and their members provisions of Part 10 of the 2006 Act on the register of directors and protection from disclosure of residential addresses.

Part 6 of the Regulations applies to LLPs provisions of Part 19 of the 2006 Act on debentures.

Part 7 of the Regulations applies to the debentures of LLPs provisions of Part 21 of the 2006 Act on the certification and transfer of securities.

Part 8 of the Regulations applies to LLPs provisions of Part 24 of the 2006 Act on annual returns.

Part 9 of the Regulations applies to LLPs provisions of Part 25 of the 2006 Act on the registration of charges.

Part 10 of the Regulations applies to LLPs provisions of Part 26 of the 2006 Act on arrangements and reconstructions. It also applies to LLPs provisions of the Companies (Cross-Border Mergers) Regulations 2007 (SI 2007/2974).

Part 11 of the Regulations applies to LLPs Part 29 of the 2006 Act on the offence of fraudulent trading.

Part 12 of the Regulations applies to LLPs provisions of Part 30 of the 2006 Act on the protection of members against unfair prejudice.

Part 13 of the Regulations applies to LLPs provisions of Part 31 of the 2006 Act on dissolution and restoration to the register.

Part 14 of the Regulations applies to overseas LLPs provisions of the Overseas Companies Regulations 2009 (SI 2009/1801) on trading disclosures.

Part 15 of the Regulations applies to LLPs provisions of Part 35 of the 2006 Act on the registrar of companies.

Part 16 of the Regulations applies to LLPs provisions of Part 36 of the 2006 Act on offences.

It is worthy of note at this juncture that the above mentioned regulations have been changing and amended with time as the legislations are changing to meet the current changes in the law.

From the discussion above, it has clearly shown that the Limited Liability Partnership possesses the combination of both the Partnership Law as well as the Company Law. This has greatly helped in its recent growth and popularity in the United Kingdom. Another reason for its popularity is that, it reduces certain forms of stress and rigidity associated with forming a company, while it protects the members from liabilities incurred by the business to the extent of their investments in the business. This form of business is also suited for businesses where all investors wish to take an active role in the management of the firm without incurring unlimited Liability which is more like a step above Limited partnership in which limited partners will not take part in the management of the business so as not to incur liabilities. Also, by virtue of Section 2(1) of the Limited Liability Partnership Act, this form of business can apply to every trade, profession or occupation, as long as the business to be carried on is lawful. Another reason for its popularity is its continuity; Unlike Partnerships which dissolves when there is less than two partners, the Limited Liability Partnership doesn’t dissolve, even after the death of its member(s)

B

To be able to effectively answer the question, it is important to deal with the issues which arose from the case scenario and relate it to the provisions of the Law.

The first issue to tackle is to determine whether a partnership business exists between Winston and Errol. By virtue of the Partnership Act 1890, Section 1(1), which provides that, “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit”; From the provision of the Act, it is clear that partnership exists between Winston and Errol.

Another issue to be discussed in the case scenario is, whether Winston can have his own personal training business. The personal training business is in competition with the partnership and unless provided for and agreed upon in the partnership agreement, or Errol giving her express consent, then Section 30 of the Partnership Act 1890, will govern the situation and the provision of the stipulates that, Winston must account for and pay over to the firm all profits made by him in that business.

The third issue to be considered is the issue of profit sharing. In relations to the case scenario, the best option for Winston and Errol is to have a Partnership which covers the ratio of profit sharing amongst other things, however in a situation where there is no partnership agreement, then the default provision, contained in Section 24(1) of the Partnership Act 1890, governs the partnership. According to the default provision, Winston and Errol are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses whether of capital or otherwise sustained by the firm. In view of this provision, unless there is a partnership agreement, Winston and Errol will be entitled to equal profit. However, this provision is different from the provision of Section 42 of the Partnership Act which deals with post dissolution profits

The fourth issue in the case scenario to be considered concern the management and decision making of the partnership business. In the absence of a partnership agreement to the contrary, the Partnership Act 1890, governs the partnership; by virtue of Section 24(8), it provides that, “any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners.”. in essence, ordinary decisions made in the course of the partnership require majority votes however, there are some decisions that require unanimous vote, as seen, decisions that relates to the usual running of the partnership business requires majority votes whilst key decisions like changing the nature of the business requires unanimous decision. In view of this, Errol can not be the only partner responsible for taking most of the key decisions.

The fifth and final issue to be considered in the case scenario deals with taking on new partners into the partnership. As earlier stated the partnership business will ordinarily be governed by the partnership agreement, however in situations where there is no agreement, the default provision contained in the Partnership Act will govern the Partnership. And the section of the Act governing the issue of admitting new partners is Section 24(7). [13] And this provision states that no person may be introduced as a new partner without the consent of all the existing partners. As a result of this provision, before a new partner can be admitted into the partnership business, the consent of Winston, Errol and subsequent existing partners in the business will be required.

From the discussion it is hereby concluded that the best option available to Winston and Errol is to draft a partnership agreement which will contain certain clauses such as, decision making clause, profit sharing clause, individual business clause, new membership clause and other clauses.