Nichola Ross Martin's Tax Consultancy

At a glance

• A partnership is created when two or more persons get together to carry on a commercial business together.
• The are three types of partnership in the UK; each defined by a different Partnership act.
• A conventional partnership is not a separate legal entity from its owners: it is unable to hold land and property in its name.
• A limited liability partnership (LLP) is a corporate version of a partnership: it is also taxed transparently but it may hold land and property in its name.
• Partnerships are transparent for tax purposes. This means that each individual is taxed as an individual, as opposed to the partnership being taxed as a separate body distinct from its owners.
• Partnerships are subject to special rules for tax, these mainly affect restriction of loss relief, capital gains and Stamp Duty Land Tax.

Certain persons are unable to form partnerships, these are:

• Charities.
• Not-for profit organisations.

When a company is a partner in a partnership it is taxed on its profits according to corporation tax rules.

Overview & FAQs

There are three different types of partnership defined in partnership law:

The conventional partnership.

This type of partnership is defined by the 1890 Partnership Act.

Many of its key features are similar to those for a sole trader:

• Partners are responsible for one and another’s debts.
• Partners are taxed on all the profits, although their share of the profits will vary by agreement.

However. there are some significant differences:

• If the partnership makes a loss, those partners who are not fully participating in the business may be restricted from claiming sideways loss relief (offsetting losses against other income).
• Individual partners may rent property to the partnership to use in its business, and charge it rent.

The limited partnership

This type of partnership is governed by the 1907 Limited Partnership Act. It is not to be confused with a limited liability partnership (LLP).

Key features:

• At least one partner must have unlimited liability, he is referred to as a “general partner”.
• Limited partners’ liability is capped, in the event of business failure (unless there was fraud or something similar) they will only lose the capital contribution that they may have made to join the partnership.
• The common set-up is that the limited partner will provide initial funding. It is not permitted to participate in management or bind the partnership.
• A limited partnership’s entitlement to losses is restricted pro-rata to its capital contribution.

The limited liability partnership (LLP)

This trading vehicle is a sort of cross between a conventional partnership and a company; it has the best features of each. LLPs are governed by the 2000 Limited Liability Partnership Act and the 2006 Companies Act.

Key features

• A LLP is a separate legal entity to its members (the partners).
• LLPs have designated partners who are the equivalent to company officers.
• LLP accounts are filed with Companies House.
• Partners have limited liability unless:
  • The LLP becomes insolvent, and the partners knowingly allowed this to happen, in which case they may be required to repay their profits of the previous two years.
  • A partner is found to be at fault at a time when he was acting under his own personal capacity.
• A LLP is taxed transparently, as if it were a conventional partnership.
• Losses are restricted in proportion to each partner’s capital contribution.
• LLPs are subject to substantial tax anti-avoidance legislation.

Limited or unlimited partnership?

The LLP is the favourite type of partnership for most individuals who are conducting a trade or business because of it affords the partners the protection of limited liability.

A 1907 Act limited partnership is useful for estate planning (a LLP has to file its accounts with Companies House, but a limited partnership does not). This version of partnership is the favourite vehicle for private equity and investment funds; it has the flexibility to allows for various partnership interests. A limited partnership can also be useful when one partner wishes to have limited liability as he moves to taking a back seat in the partnership.

If you are looking for a flexible trading vehicle in general terms then consider a conventional partnership or LLP.

Do we need a partnership agreement?

Partnerships are relationships and any relationship may go wrong. It is sensible to have a partnership agreement in place to determine (the following list is an absolute minimum):

• Profit share
• Capital contributions
• How to deal with the arrival and departure of a partner
• Succession
• Death of a partner.
• Divorce of a partner.

What is and what is not a partnership?

Joint or co-ownership of land and property
Where two or more persons hold a joint or common interest in land they do not necessarily create a partnership. They can also exist as the joint or co-owners of the property. If they chose to let out their property, the arrangement will generally not be treated as a partnership, unless they make steps to organise their activities in such a way that it is regarded as a property-investment business or a trading partnership.

Joint or co-owners will not normally need to file a partnership tax return, they will report their share of joint income on the Land & property pages of their Self Assessment returns.

A property-investment partnership
When two or more persons come together and form a property business with a view to making a profit and running it as a commercial enterprise it will be treated as a partnership for tax purposes. The business will be then be required to file a partnership return.

When a partnership's sole or main activity is investing or dealing in chargeable interests (land) (whether or not that activity involves the carrying out of construction operations on the land in question) it is described as a "property-investment partnership". It is vital to determine this at an early stage as transfers of partnership interests in and out of this type of partnership are subject to Stamp Duty Land Tax (SDLT).

A transfer of land and property into a partnership will always be subject to SDLT unless the transferor and partners are all connected.

A trading partnership
A partnership which is set up to trade is not subject to special rules for SDLT on the transfer of partnership interests. So, no SDLT is charged on transfers of partnership interests, unless the partnership activities change so that its activities become wholly or mainly those of a property investment partnership. Or, unless the partnership interest is a chargeable interest (i.e. it involves land).

An active property partnership
Two or more persons may create a property partnership with a view to be engaged in activities beyond merely collecting rents. The tax treatment of a partnership which qualifies as a trade is in most cases more favourable than one which qualifies as an investment business. See Is it a trade or a business?

For SDLT purposes care is needed to ensure that any trading partnership that is exploiting interests in land it is not regarded as a property investment partnership. A point to watch: this is a good example of a situation so common in UK taxes: different activities are treated in different ways depending on what tax applies.

By concession, a trading partnership which also has insubstantial income from land and property will still be assessed as if all its profits are trading profits.

Tax planning and partnerships
Family partnerships are a useful tool in estate plannning, however, partnerships can also be very tax efficient in terms of income tax and capital taxes, see Will I save tax if I trade via a partnership.