Is there an accounting or accounting obligation at the GbR?
The GbR is not subject to the commercial bookkeeping obligation according to HGB, but must make an income-surplus-account (EÜR). According to § 141 AO (tax code), an accounting obligation exists only from a profit of more than 60,000 euros.
And of course proper invoices must be issued. As soon as the turnover and profit limits are exceeded, double-entry bookkeeping is mandatory. However, the company under civil law must also be converted into an OHG.
Selling GbR shares – what should be considered?
Selling the shares is not a problem in itself. However, it is only possible if the other shareholders agree. In such cases, however, the articles of association could stipulate that a majority decision is sufficient.
According to WHOLEVEHICLES, the shares can then be sold to third parties or to one of the shareholders. This transfer can take place informally, unless it is about houses or land, in which case a notary must be involved.
Beware of selling below value
If you want to sell your shares quickly because of lack of money, you may do so under value. From a civil law perspective, the purchase price can be freely negotiated and therefore an extremely low price is not objectionable.
However, the tax office can see the case completely differently. Especially when shares are sold to spouses or other family members at an extremely low price, the tax office assumes a “mixed gift” and sets a gift tax. (For exemptions, see Section 16 Inheritance and Gift Tax Act (ErbStG) ).
What should be considered when dissolving a GbR?
A GbR can also be dissolved. This is mainly possible in two cases. On the one hand, when a partner dies (or resigns) and on the other hand, when the purpose for which the company was founded has been achieved or can no longer be achieved. In such cases, it is advisable to record important provisions in the contract when the company is formed.
Basically, there are three steps to be observed in the dissolution: the dissolution itself, the dispute and the so-called complete termination. Either the process is regulated in the contract and can then be processed or the matter expires in accordance with §§723-740 BGB.
Often the termination of a partner leads to dissolution. Then all pending deals must first be concluded during the dispute. Subsequently, items that were brought in by the shareholder are to be returned and all debts to be settled and deposits to be repaid. After the settlement, surpluses can still be distributed, if any. As soon as the settlement is over, the company is deemed to have ended.
What are the differences to OHG, UG and GmbH?
- First of all, there is a difference in the number of founders . For the GbR and the OHG at least two people are required, for the UG and GmbH one is sufficient.
- Only in the case of a civil law corporation, no special formalities are required when it is founded. A notarial form and an entry in the commercial register are required for OHG, UG and GmbH.
- The costs, which are low with the GbR, can be up to 500 euros for the OHG and UG and up to 1000 euros for the GmbH.
- Due to the additional formalities, the establishment of a civil law company only takes around one week, and a general partnership, UG and GmbH up to 4 weeks.
- GbR and OHG do not need start-up capital, the UG theoretically 1 euro (which is not sufficient in practice and therefore at least 1000 euros) and the GmbH 25,000 euros, half of which must be paid in at the start.
- Another difference is the liability. Because in the civil law company and OHG the partners are personally liable, in the UG and GmbH with the company assets.
- And finally, the accounting is easiest due to the simple EÜR at the GbR, while OHG, UG and GmbH have to carry out double bookkeeping.
Convert GbR into another legal form
- Change of legal form from GbR to OHG: According to the HGB, this change occurs automatically if the type and scope of the trade require a commercial business operation (§ 1 (2) HGB).
- Change of legal form to a GmbH or UG: The GbR can also be converted into a GmbH or UG, for example to take on investors. However, a notarial contribution agreement is required for this. Conversions are possible and can be carried out according to the Conversion Act (UmwG) . In addition, the effects on taxes that result from this must then be clarified with the tax advisor. An important law that can serve as a guideline is the so-called Transformation Tax Act . This shows which changes are possible without having to pay taxes afterwards.