A partner of a partnership can be regarded as a co-entrepreneur. The consequence of this is that according to § 15 (1) sentence 1 no. 2 EStG, he generally earns commercial income. The co-entrepreneur term is a so-called type term. Thus, co-entrepreneur is who develops co-entrepreneur risk and co-entrepreneur initiative. The lowest threshold for establishing the position of co-entrepreneur is the non-deferred position as a limited partner. Therefore, the limited partner, whose rights have not been restricted, is always a co-entrepreneur. The limited partnership is the limited partner of a limited partnership (KG). On the other hand, the personally liable partner is the general partner of the limited partnership. The general manager is often a GmbH. Then there is a GmbH & Co.KG, which also represents a partnership.

Co-entrepreneur is who can develop co-entrepreneur risk and co-entrepreneur initiative. The co-entrepreneur term is a so-called type term. Consequently, the circumstances of the individual case, which speak for and against a co-entrepreneurship, must be assessed in the context of an overall consideration. Consequently, more of the one can compensate for less of the other conceptual feature, with no feature being entirely absent. Co-entrepreneur initiative develops who has influence on company decisions and participates in the realization of the company purpose. Someone who participates in the profit and loss and the hidden reserves of a partnership develops co-entrepreneur risk. The minimum requirement is the position of a limited partner. It is therefore crucial what rights and obligations the limited partner has within the framework of the partnership. Historically, the limited partner was considered a pure investor. Therefore, the rights of the limited partner are historically considerably restricted.

The limited partner is not authorised to manage. Nevertheless, he is granted an emergency management right. The subject of emergency management may be acts of any kind, which need not be limited to the “maintenance of an object” of the company’s assets, but also include the protection of the company’s stock per se. Furthermore, according to § 164 HGB, the limited partner has a limited right to object to measures taken by the management. Consequently, the limited partner may object to such measures by the general managers which go beyond the normal operation of the company’s commercial activities. The criterion for the assessment is therefore the conditions of the concrete society. Therefore, the size, the previous business pattern and the previous business policy are important.

In fundamental matters, the limited partner, since he is a partner of the partnership, can exercise his right to vote at the general meeting. The standard of § 199 HGB basically regulates the shareholder resolutions in an open commercial company. However, this standard also applies to the KG through the reference in § 161 paragraph 2 HGB.

Furthermore, the limited partner has a right of supervision according to § 166 HGB. However, it is severely restricted. It includes the right to communication of the annual financial statements and their examination with inspection of the KG’s documents. Therefore, the limited partner can check whether the profit and loss was correctly determined. Only if there is an important reason, so § 166 paragraph 3 HGB extends the monitoring rights of the limited partner. The standard serves as a compromise between the limited partner’s right to information and the interests of the general managers as, according to the historical understanding, actual entrepreneurs. An important reason exists if the right of supervision derived from § 166 (1) HGB is not sufficient for a proper exercise of the membership rights. Furthermore, the interests of the limited partner must be endangered. This is especially the case if there is a reasonable suspicion of incorrect business or bookkeeping, if there is a reason for mistrust. In addition, the limited partner is granted an unwritten information right depending on his need for information.

According to § 167 paragraph 1 HGB, § 120 HGB applies to the calculation of the profit of the limited partner. The result is therefore to be determined on the basis of the annual accounts. Nevertheless, according to § 167(2) HGB, the amount of the capital share is limited to the compulsory contribution. Consequently, any additional profits are to be recorded in an account other than the capital account. The deposit is therefore the upper limit of the booking. If the profit share is nevertheless entered in the capital account, it is usually a contribution by the shareholder if he agrees with the booking and does not contradict it.

The limited partners are not involved in the hidden reserves when the company leaves or dissolves. You have no rights to withdraw from the company assets (§ 169 (1) sentence 1 HGB). According to § 169 (1) sentence 2 half sentence 1 HGB, the limited partner only has a right to pay out the profit share. It is therefore not absolutely necessary that a fellow entrepreneur is involved in the hidden reserves. However, this considerably strengthens the position of mint entrepreneurs.

According to § 166 paragraph 3 HGB, the limited partner participates in the loss only up to the amount of his capital share and his still backward contribution. Thus, the participation in the loss is only limited.

The rights of the limited partner are dispositive and can be withdrawn and extended. The regulation for the distribution of profit and loss according to § 167 HGB can therefore be restricted or extended. Therefore, the share of profits of the limited partner can be limited or excluded. However, it can also be extended beyond the upper limit of § 167 paragraph 2 HGB. BFH assumes that the full assumption of the losses by the limited partners can be regulated. Therefore, the participation in the loss can be contractually extended. Since the use of results regularly leads to disputes, regulations on the requirements and amount of reserves to be created are highly recommended.

The extent to which it is possible to restrict surveillance rights is controversial. § 118 paragraph 2 HGB contains a general legal idea. Therefore, at least important reasons of the type listed therein must lead to an information right. A complete exclusion of the right to information is not possible. Consequently, the limited partner must at least be able to determine whether his share of the operating assets has been calculated correctly. § 166 paragraph 3 HGB can be modified to the effect that certain facts are excluded as an important reason. In addition, the requirement to present a threat of interest can be increased. However, the right to information cannot be completely excluded. The right to information can be extended to an unconditional one.

If the rights of the limited partner have been revoked and the minor characteristic cannot be compensated, the shareholder is usually only a silent party within the meaning of §§ 233 HGB and not a co-entrepreneur. Then, as a silent partner, you do not earn income from commercial co-entrepreneurship, but income from capital assets according to § 20 (1) no. 4 EStG. A co-entrepreneurship is still not considered if the limited partner can be terminated from the company. Then the legal and economic position of the limited partner is restricted and depends on the decisions of others. The limited partner is, as he is exposed to the risk of dismissal, considerably restricted in his legal exercise. In addition, the reduced legal status affects the selling price. Even then, the commander is only considered a silent participant.