The liability of the limited partner has a tax impact on his participation in the profit and loss of the company. § 15a EStG limits the offsetting of losses for limited partners. In the following, it is shown what is important in the offsetting of losses of a limited partnership.

The liability of the limited partner of a limited partnership must comply with the legal guidelines. This applies to § 171 Abs. 1 HGB to be highlighted. Accordingly, a limited partner is liable towards creditors with the amount of his contribution to the company, also called a detention deposit or detention sum. In addition, liability is excluded if he has provided it. Furthermore, the limited partner’s capital account can be reduced by losses and even negative. This can result in a restriction of profit distributions to the shareholder, should the in accordance with § 169 para. 1 p. 2 HGB can be undershot.

This limited liability for the limited partner is also reflected in his powers for the company. According to § 164 HGB, the limited partner can neither participate in the management of the company nor to represent it according to § 170 HGB.

1.2. Liability of the general manager

Now the commander must be distinguished from a complementary. If a partner assumes full liability for liabilities of a company (full), he is liable to creditors with all his assets. In addition, the general manager has the task of managing the company. It should be noted that a general manager may be a natural or legal person. However, legal entities, such as a corporation at a GmbH & Co. KG, often take on complementary positions. Therefore, we do not consider these in the following when considering the liability of the limited partner, who is usually a natural person.

Liability of a limited partner – tax law

2.1. Liability in case of positive capital account

The liability of a limited partner only becomes interesting in the event of losses incurred by the company. The question of liability does not arise in the case of a profit generated. Because there are no creditors who continue to have open claims against the company.

First of all, a limited partner must take into account whether a positive or a negative capital account remains after deduction of a loss incurred. If a positive capital account remains, there is no loss restriction according to § 15a EStG. Thus, it is possible to compensate or deduct the incurred loss in accordance with § 10d EStG.

2.2. Liability in case of negative capital account

In contrast, according to § 15a EStG, when a negative capital account is created, no loss can be offset with other types of income. Except where the detention deposit entered in the commercial register exceeds the deposit actually made. In this case, a loss can be compensated or deducted up to the entered liability sum. Therefore, in § 15a EStG, the offsetting of losses is linked to the limited liability of the limited partner.

Nevertheless, non-compensable or deductible losses can occur. These are called an accountable loss and are recorded. That amount shall be continued on an annual basis and shall be calculated as the offsetting loss of the previous year plus the non-recoverable losses in the current marketing year. The concept of loss carry-forward applies at company level.

The loss compensation to the limited partner is to be limited to the liabilities entered in the commercial register if this is higher than the deposit made. The special business assets of a limited partner do not belong in the calculation. Exclusively the capital account I and II and the assets of the supplementary balance sheet fall under the restriction of § 15a EStG.

SEGMENT013 Example 1:

In the following, Kommanditist A has a capital account of € 60,000. This year a loss of € 180,000 is attributable to him. In addition, there was an entry in the commercial register regarding the liability sum of A. This is 150,000 €.

This results in a compensatory loss according to § 15a para. 1 S. 1 EStG in the amount of € 60,000, corresponding to the capital account. In addition, the external liability of the limited partner A will be extended by the registered liability amount, which means an additional loss of € 90,000 in accordance with § 15a EStG para. 2 and 3 EStG becomes eligible for compensation. The remaining € 30,000 are not eligible for compensation and are thus treated as an offsettable loss according to § 15a Abs. 4 EStG. In addition, this amount serves as a loss carry forward for future periods.

3.2. Removal of the limited partner

Insofar as withdrawals are made by the limited partner, this reduces the loss compensation volume. Since withdrawals and previously made deposits can circumvent the prohibition on loss compensation, these are subject to § 15a para. 1 EStG added to the profit share if a negative capital account arises or increases.

3.3. Subsequent deposits by a limited partner

Although deposits can in principle compensate for losses, the time of the deposit must be considered. If these are subsequently brought into the company, these existing accountable losses cannot compensate. In addition, no future losses can be compensated if the negative capital account increases or only arises as a result. Subsequent deposits according to § 15a Abs. 1a EStG are submitted after the end of a marketing year. A non-recoverable loss must have been incurred by the shareholder in this marketing year.

SEGMENT020 Example 2:

Kommanditist B has paid a deposit of € 30,000 according to the entry in the commercial register. Since he has a loss of €70,000 in the first year, he puts in an additional €40,000 afterwards. However, he retrieves them at the beginning of next year. Thus, the deposit does not have an effect and ultimately a capital account of −40,000 € remains.

3.4 Planning of deposits for loss years

SEGMENT023 Example 3:

Kommanditist C has a capital account of −50,000 € at the beginning of 2017. His share of the loss this year is €20,000. He also puts in $50,000. In the following year 2018, the limited partner will suffer a loss of € 70,000.

In this case, €20,000 can compensate for the loss in the first year. The remaining €30,000 is to be valued as a deposit. As a result of the contribution, the capital account at the end of the year stands at −20,000 € compared to the offset loss of 50,000 €. This results from the non-imputable over-deposit of € 30,000. Thus, the commander pays more than would have been necessary to cover all losses this year. The additional loss in 2018 results in an offsettable loss of € 120,000 in a capital account on 31.12.2018 of € −90,000.

If he limits his deposit to the amount of the loss in 2017, he can compensate for a further €30,000 of the new losses incurred by the deposit next year. Now an offsettable loss of € 90,000 would occur in a capital account of € −90,000.

Consequently, it makes sense to limit the deposits to the amount of the loss of the respective year and to spread them over several years. This makes it possible to compensate for more losses.

4. conclusion on the liability of the limited partner according to § 15a EStG

When calculating the reimbursable losses in a limited partnership, particular attention must be paid to the liability contribution of the considered shareholder entered in the commercial register. Even if the shareholder’s capital account is lower, he must meet his liabilities. Through targeted deposits, these can certainly be used as compensation for losses. However, it is necessary to pay close attention to the time of the deposits, otherwise they may not be allowed for loss compensation. If you incur losses and you need help with billing, you can contact us.