Civil law partnership - partnership agreement and property (part 2)
A civil partnership is a form of business activity based on the cooperation of natural persons bound by a civil partnership agreement. The functioning of a civil law partnership is mostly regulated in the Civil Code, but the provisions of other acts are also applicable to it, including, inter alia, tax laws or the Labor Code.
Civil law partnership and its legal nature
In the Entrepreneurs' Law Act, in the provision of art. 4 sec. 2, the legislator decided that entrepreneurs are partners of a civil partnership in the scope of their economic activity. It follows that a civil partnership does not have legal personality, and is performed on its behalf by its partners as entrepreneurs registered in the register of entrepreneurs. The importance of such a shaping of subjectivity within a civil law partnership is manifested, inter alia, in in court or administrative proceedings - the attribute of the parties is held by its partners on behalf of the company, while on tax grounds it means that the income obtained by the company is taxed by its partners - each individually on their own behalf.
A civil law partnership is a contract of natural persons governed primarily by the Civil Code. It is not a separate legal entity, therefore its partners have legal personality on its behalf as natural persons conducting business activity.
The partners of a civil law partnership may be not only natural persons, but also legal persons and the so-called handicapped legal persons, i.e. organizational units that are not legal persons but have legal capacity, e.g. general partnership, although in practice the form of a civil partnership is most often chosen by natural persons.
Civil law partnership - contract and registration
When concluding a civil law partnership agreement, the partners have a lot of freedom in determining its content. In fact, the legislator excluded the possibility of its free shaping only in the context of the protection of third parties - this refers to the issue of liability of a civil partnership for obligations towards third parties, which is an absolutely binding principle. Pursuant to Art. 864 of the Civil Code, the partners are jointly and severally liable for the obligations of the company, therefore, for example, a contractual clause which would specify the acquisition or exemption from financial liability for the obligations of the partnership of one of the partners would have effect only inside the company, but would not affect the creditor's situation. In the remaining scope, the legislator granted the shareholders freedom in shaping the content of the company's provisions, and this freedom applies in particular to the rules of managing the company's affairs, the rules of representing the company, the rules of participation in losses or distribution of the company's profit, as well as the formulation of premises which result in the dissolution of the company.
A civil law partnership is an agreement of partners, which means that there is an obligation relationship between them. For this reason, the content of the civil law partnership agreement should distinguish its essential elements:
the common economic goal of the partners - in relation to a civil law partnership it is the achievement of financial benefits, while running a business is then a means to achieve this goal,
commitment of the partners to a specific action - this action is manifested in particular by making contributions to the company.
It is worth noting at this point that making contributions to a civil law partnership is not imposed by regulations - in this respect, the partners have also been granted the freedom to shape this issue in the partnership agreement.
As a rule, the civil law partnership agreement should be made in writing. Failure to observe this form will result in the so-called evidence difficulties.
As already mentioned, it is not a civil partnership that is subject to registration, but its partners who are natural persons conducting business activity. For this purpose, they enter an entry in CEIDG.
There is no obligation to register on a partner in a civil law partnership who is a legal person. Joining a civil law partnership of a legal person is only an accession to an agreement. On the other hand, activities related to the membership of a legal person in a civil partnership are performed by a natural person or a group of such persons authorized to represent the legal person.
Thus, the steps necessary to register a civil law partnership agreement are:
Registration in the register of entrepreneurs in CEIDG by partners who are natural persons.
Conclusion of a civil partnership agreement in writing.
Application of the company to the Central Statistical Office in order to obtain the company's REGON number (RG-OP form).
Identification application to the tax office in order to obtain the company's tax identification number (NIP-2, NIP-D).
Supplementing the entry in CEIDG by partners who are natural persons with the REGON and NIP numbers of the company.
If the only form of business activity performed by partners is a civil law partnership, it is advisable to specify in the application for entry of the future start-up date and to complete the application for NIP and REGON of the civil partnership, even before the date of commencement of business activity.
When submitting a civil law partnership agreement to the tax office competent for the company's seat, tax on civil law transactions must be paid. The tax rate is 0.5%, and the basis is the value of contributions made to the company's assets.
Additionally, if the company employs employees or contractors, it will be necessary to report it as a contribution payer to ZUS (ZUS-ZPA form). In turn, the partners of the company submit the insurance application themselves.
The nature of the property and shares of partners and a civil law partnership
The property of a civil law partnership is, in fact, the property of the partners and constitutes the so-called commonality. The term "company assets" is often used and can be derived from statutory standards, but it should be emphasized that it is inaccurate. We are dealing with joint ownership, which refers to the personal assets of partners, and was created as a result of the transfer of some of these assets to the company in the form of contributions.
The following consequences result from the nature of the company's assets:
partners may not dispose of their shares in the property or shares in its individual components, i.e. that, for example, they cannot sell them,
for the duration of the joint commonality, that is, for the duration of the partnership's existence, the partner may not demand the division of the joint property.
Thus, a partner in a civil law partnership has two assets - personal property and an undefined share in joint ownership. Settlement between partners on account of participation, and thus also separation of fractional shares, will take place when the legal relationship of the articles of association expires - at the time of dissolution of the company or withdrawal by the partner from the company.
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Making a contribution by a partner to the company means transferring it to the company, and strictly - to all partners, which is the basic obligation of the partner related to the property. Contributions may take the form of:
material (the so-called in-kind contribution),
transfer of rights in rem to shareholders,
transfer of obligation rights, i.e., e.g. bringing the use of a car, rental or tenancy rights,
provision by the partner of services specified in the contract for a specified or indefinite period of time.
If real estate is brought into the company as a contribution, the form of a notarial deed should be used for the articles of association. This applies to the moment of establishing the company and the expansion of its activities.
Partners of a civil law partnership in which real estate is an asset want to expand their business by accepting a new partner. To this end, they must modify the articles of association. Although the company is not and will not become the legal owner of the property, its modified agreement must take the form of a notarial deed, as some of the ownership will be transferred to the new partner.
Determining how to make a contribution depends on the subject of the contribution. If it is in the form of money, its contribution will be made when the transfer is credited to the company's bank account. On the other hand, the contribution in the form of the provision of services by one of the partners is carried out under the partnership agreement itself, so there is no need to conclude an additional employment contract or contract of mandate. However, with regard to the contribution in the form of real estate, it should be noted that it will constitute joint ownership of the partners only if the form of a notarial deed is retained for the articles of association.