Guernsey: Limited Partnerships In Guernsey

Preface

This memorandum has been prepared for the assistance of clients considering creating a limited partnership in Guernsey. It is intended to provide only a summary of the main legal requirements and general principles applicable to the establishment and administration of limited partnerships. It is not intended to be comprehensive in its scope. It is recommended that a client seeks legal advice on any proposed transaction prior to taking steps to implement it.

A series of briefings on other aspects of Guernsey law have been produced by Ogier and are available on request.

This memorandum has been prepared on the basis of the law and practice as at 1 July 2008.

Introduction

The Limited Partnerships (Guernsey) Law, 1995 (as amended) (the 'Law') was brought into force on 1 February 1996. The Law provides a comprehensive statutory framework for the establishment and operation of limited partnerships in Guernsey.

A limited partnership may be an appropriate structure for a number of different purposes. A principal use will be to provide an additional form of investment vehicle for mutual funds, in particular for the venture capital industry and, in this regard, it is possible to list limited partnership interests on the Dublin Stock Exchange and the Channel Islands Stock Exchange. A limited partnership will also be an attractive structure for various tax planning purposes, for instance, as a method of holding assets situated in another jurisdiction. It may also provide an attractive method of trading as a partnership where it is desirable to have the flexibility to introduce partners as passive investors on a limited liability basis.

A Guernsey registered limited partnership may elect to have separate legal personality.

Tax treatment

In most cases, the principal attraction of the limited partnership for the partners will be its tax transparency. The effect of this is that profits and losses of the limited partnership are attributed to the partners themselves who will be taxed according to their proportionate share of such profits and losses.

There are two particular advantages to a partner of this tax treatment. Firstly, the partner is able to set off his share of any losses of the limited partnership against profits from other investments; something which is not possible in the case of an investment fund company. Secondly, the profits and losses of the limited partnership which are attributable to the partner will be treated for these purposes as arising in the country in which the investments of the limited partnership are made, which can enable a partner to take advantage of double tax treaties between the country of his residence and those of the investments.

The Income Tax (Guernsey) Law, 1975 has been amended to deal specifically with limited partnerships. A limited partnership will not itself be subject to an assessment for income tax, and a non resident partner will not be liable to Guernsey income tax except on Guernsey source income. This excludes income which is wholly derived from partnership activities with, and investments in, persons and companies which are not resident in Guernsey, and, by long standing concession, bank deposit interest. The Income Tax Authority has confirmed to us that this applies equally to a limited partnership which elects to have separate legal personality.

Where the general partner of a limited partnership is a Guernsey incorporated company, the preferable tax status for the general partner is likely to be zero rated.

Regulation

The States of Guernsey Policy Council requires that consent be obtained under the Control of Borrowing (Bailiwick of Guernsey) Ordinances, 1959 (as amended) ('COBO') for the issue of limited partnership interests in a similar way to consent being required for the issue of shares in a Guernsey incorporated company. The States of Guernsey Policy Council, acting through the Guernsey Financial Services Commission, requires certain prescribed information in relation to the general partner of a limited partnership and of the limited partnership, although not in relation to the limited partners. Requests for consent are made on a standard application form.

Limited partnerships which constitute collective investment schemes will be subject to the regulatory regime under the Protection of Investors (Bailiwick of Guernsey) Law, 1987 (as amended) ('POI Law'). Accordingly, the partnership will need to be authorised and licences will be required by service providers to the limited partnership. The general partner, as the manager of the partnership, will undoubtedly require a licence under the POI Law, as will any other service providers providing services to the limited partnership in or from within Guernsey. Licensees will be subject to certain rules.

Establishing a limited partnership

In order to establish a limited partnership the following steps will need to be taken:

• An application must be submitted to the Guernsey Financial Services Commission (acting for the States of Guernsey Policy Counsel) under COBO, for consent to the registration of the limited partnership. The initial and continuing registration of the limited partnership is conditional upon obtaining such consent and compliance with any conditions which may be attached thereto. Where a limited partnership is to have separate legal personality, its name must include the word "incorporated" or any cognate expression and the name must be approved in writing by the Guernsey Financial Services Commission.
  
  
• A declaration in the prescribed form, signed by any one or more of the general partners, the consent(s) referred to under (a) above and the prescribed fee of £100 must be delivered to HM Greffier. The declaration must state the name of the limited partnership, the nature and principal place of its business, its registered office (which must of every general partner (or, in the case of a company or a partnership, the address of its registered office or if none, its principal place of business), the duration of the limited partnership and such other particulars as may be prescribed (none have been prescribed as yet). There is no requirement to provide the names of the limited partners.
  
  
• If the general partners wish to elect that the limited partnership shall have legal personality a declaration to this effect signed by any one or more of the general partners must be delivered to HM Greffier at the same time as the documents referred to in (b) above. Election to have legal personality may only be made at the time of registration of the limited partnership. Once an election to have separate legal personality is made it is irrevocable and failure to make such an election at the time of registration shall be final. The law states that such election will constitute the limited partnership a body corporate.
  
  
• On receipt of the above documents and fee, the Greffier will register the limited partnership and issue a certificate of registration to the general partners. In default of registration, the partnership is deemed by law not to be a limited partnership. We would currently envisage that the certificate of registration could usually be obtained within two to three days of the above documentation being submitted, although in certain cases it may be possible to shorten this timescale.
  
  

The partnership agreement

The partnership agreement will set out in detail the respective rights and obligations of the general partners and the limited partners and will deal in particular with the following matters:

• the name of the limited partnership which must contain the words 'Limited Partnership' or the abbreviation 'L.P.' or 'LP' and must not include, subject to certain exceptions, the name or distinctive part of the name of any limited partner. If the limited partnership is to have legal personality, the name of the limited partnership must conclude with the word 'Incorporated';
  
  
• the purposes for which the partnership is established;
  
  
• the powers and obligations of the general partner in relation to the partnership, including in particular the general partner's obligations in respect of the management of the partnership and any limitations on its authority;
  
  
• the liability of the general partner to contribute to the debts of the partnership;
  
  
• the method and procedure for admission of new partners to the partnership and the retirement of existing partners;
  
  
• the extent of liability of each of the partners to make contributions to the partnership;
  
  
• the procedure for the transfer of interests in the partnership;
  
  
• the maintenance of accounting and other records of the partnership; and
  
  
• the allocation and distribution of the capital and profits of the partnership between the partners. This is an aspect which is likely to vary depending upon the particular purpose and nature of the partnership and is likely to entail the most detailed drafting and negotiation.
  
  

The Law prescribes that certain powers may be exercisable only if provided for or consented to in the partnership agreement, and that the exercise of certain rights is subject to the terms of the partnership agreement. Likewise, the partnership agreement may not exclude certain statutory rights. It is, therefore, essential that prior to execution a partnership agreement is reviewed against the Law to ensure that the rights, powers and obligations provided for in the partnership agreement are not restricted in any way by the terms of the Law.

Rights and obligations of a general partner

The Law provides as a general statement that a general partner of a limited partnership has all the rights, powers and duties and is subject to all the restrictions, obligations and liabilities of a partner in a conventional partnership. The Law also specifically provides that the rules of law applicable to partnerships shall, so far as not inconsistent with the Law, apply to limited partnerships. It will therefore be necessary in some circumstances to look at the existing law in relation to conventional partnerships in order to determine the exact scope of the rights and obligations of a general partner, particularly where the partnership agreement does not define those powers and obligations exhaustively.

The general statement set out above as to the rights and powers of a general partner is, however, qualified in three important respects. In the absence of the written consent of all the limited partners, a general partner has no authority to:

1. do anything which makes it impossible to carry on the business of the limited partnership;
   
   
2. deal in any manner with any property of the partnership or in which the partnership has any interest, or dispose of any of the rights in any such property, for any purpose other than for a partnership purpose;
   
   
3. admit a person as a general or limited partner, unless the right to do so is conferred by the partnership agreement.
   
   

Clearly, restriction (c) can be and will be removed in most limited partnership agreements. However, restrictions (a) and (b) will not generally be consented to in the partnership agreement and, in particular in the case of restriction (b), may be open to different interpretations.

For the protection of a general partner, therefore, it may well be desirable to set out the purposes of the partnership in some detail in the partnership agreement and to include a statement, such as is often seen in the Memorandum of Association of a company, that a purpose of the limited partnership is to do all such things as may be incidental to or conducive to the attainment of the general purposes of the partnership. In the absence of a wide definition of the purposes of the partnership there may be a danger that an act of a general partner involving the property of the partnership could be open to challenge on the basis that it was not done for a partnership purpose.

The partnership agreement will normally provide that all the property of the partnership is to be held by the general partner, and in any event the Law provides that any property of the partnership which is transferred to, vested in or held on behalf of any general partner or transferred to or vested in the name of the partnership shall be held by the general partner on trust as an asset of the partnership in accordance with the terms of the partnership. If there is more than one general partner, the property of the partnership is to be held by the general partners jointly. The partnership agreement should specifically provide for the property of the partnership to be held by the general partner or partners in accordance with this provision of the Law.

The Law specifically states that the general partners are to be jointly and severally liable for all the debts (including obligations and liabilities) of the partnership without limitation.

The Law provides that any debt incurred by a general partner in the conduct of the business of the limited partnership shall be a debt of the partnership. There may be circumstances where it is unclear whether a general partner is acting on its own behalf or on behalf of the partnership and, in these circumstances, there clearly needs to be appropriate documentation and a clear indication as to the capacity in which a general partner is acting, in order to ensure that a general partner does not incur a debt for which it, rather than the limited partnership, is liable. We would also recommend that, as with trusts, all documents executed by a general partner on behalf of the partnership clearly indicate that the general partner is acting on behalf of the partnership.

The partnership agreement will normally provide for the retirement of a general partner on the giving of a certain period of notice, although retirement may be conditional upon a suitable replacement general partner being appointed. Otherwise, if the retiring general partner is the sole general partner and the limited partners are unable to find a replacement within 90 days of the general partner's withdrawal, the partnership will be dissolved.

Rights and obligations of a limited partner Contributions

A limited partner is liable under the Law to contribute to the partnership the amount agreed to be contributed by the limited partner, which will normally be set out in the partnership agreement. The Law specifically permits contributions to be made by a limited partner in money or property, but not in services or loans.

Share of profits and return of contributions

The Law gives a limited partner the right to share in the profits of the partnership, subject to the terms of the partnership agreement and the Law. The Law similarly gives a limited partner an entitlement to the return of all or part of the limited partner's contribution to the partnership at the following times:

• on the dissolution of the partnership; or
  
  
• at the time or upon the occurrence of the event specified in the partnership agreement.
  
  

Although the Law permits partnership contributions to be made in the form of money or property, unless the partnership agreement provides otherwise, or unless the consent of all the partners is obtained, a limited partner has no right to demand the return of his contribution except in the form of money. The method of payment in respect of the return of contributions may include the release of a further obligation to make capital contributions.

The partnership agreement will normally provide for the respective entitlements of each of the limited partners to a share in the profits of the partnership and to a return of contributions.

The Law imposes an important limitation on the rights of a limited partner to receive payments in respect of profits or a return of contributions. A limited partner is only entitled to receive such a payment if, at the time the payment is made, and immediately thereafter, the partnership is solvent. For these purposes, "solvent" means that the limited partnership is able to discharge its debts in full as they fall due out of the partnership assets without recourse to any separate assets of the general partner which have not been contributed to the partnership. If this solvency requirement is not met, or in the event of the insolvency of the partnership within six months of the date of the payment, a partner will be liable for a period of one year from the date of the payment to return such payment. However, this liability will be invoked only if it is necessary in order to meet a debt of the partnership incurred during the period in which such partner's contribution formed part of the partnership's assets.

Dealings with the partnership

The Law envisages that limited partners may lend to, borrow from or enter into other transactions with the partnership, and it is common for money or assets to be provided by a limited partner to a partnership in the form of both contributions and loans. In any claim by a limited partner against the partnership in respect of such a loan or other obligation owed to a limited partner (other than in respect of a return of contributions), the limited partner will rank as a creditor of the partnership.

Rights to information

Subject to the partnership agreement, a limited partner has the right under the Law to inspect and make copies of the books and to inspect the records of the partnership. More importantly, he is entitled to be given on demand true and full information of all things affecting the limited partnership and may require a formal account of partnership affairs whenever "circumstances render it just and reasonable".

Limitation of liability

A limited partner will not be liable for any of the debts or obligations of the partnership unless he participates in the conduct or management of the business of the limited partnership or transacts the business of, signs or executes documents for or otherwise binds the limited partnership, in which case he will be liable as a general partner. However, this potential liability is restricted to liability for the debts incurred during the period in which the limited partner participated in the management of the partnership. The Law also provides that doing any one or more of the following will not in itself amount to participation in the management of the partnership.

• being a contractor, agent or employee of the partnership, or of a general partner;
  
  
• acting as a director, officer or shareholder of a corporate general partner;
  
  
• acting as a partner in a partnership which itself is a general partner;
  
  
• consulting with and advising a general partner as to the business of the limited partnership;
  
  
• investigating, reviewing, approving or being advised as to the accounts or affairs of the limited partnership;
  
  
• exercising any right or power conferred on limited partners by the Law;
  
  
• acting as surety or guarantor or providing any other form of security for the limited partnership, generally or in respect of specific debts;
  
  
• approving or disapproving an amendment to the partnership agreement;
  
  
• filing the prescribed declaration with the Greffier;
  
  
• (requiring the appointment or removal of an auditor or applying to the Royal Court for the appointment or removal of an auditor; or
  
  
• voting on a number of specific matters set out in the Law.
  
  

The Law goes on to say that the existence of the exemptions set out above shall not give rise to any implication that the exercise of any other right, power or function by a limited partner will necessarily, by reason of that fact alone, constitute the participation by such limited partner in the management of the limited partnership.

Admission of new partners and transfer of interests

The partnership agreement will normally provide a procedure for admitting additional or replacement limited partners, which will usually involve the new limited partner executing a deed of adherence under which the limited partner agrees to be bound by the terms of the partnership agreement. The partnership agreement may also provide for the level of contributions to be made by any new limited partner, which in some cases may be calculated by reference to a formula. The admission of new limited partners must be done in accordance with the terms of the partnership agreement. It is necessary to execute an admission agreement in writing and enter the relevant details in the register of limited partners.

Subject to the provisions of the partnership agreement, a limited partnership interest is assignable in whole or in part. An assignee of a limited partnership interest will become a limited partner on the assignee's name being entered in the register of limited partners required to be maintained under the Law. On becoming a limited partner, the assignee will acquire all the rights and powers and be subject to all the restrictions, liabilities and obligations of the assignor of the interest, other than certain liabilities incurred by the assignor under the Law prior to assignment, such as the liability to repay profit/capital distributions, or liabilities incurred by reason of taking part in the management of the partnership. These types of liabilities will remain with the assignor notwithstanding anything to the contrary in the partnership agreement or any other agreement.

Third parties dealing with a limited partnership

There are a number of provisions in the Law which are relevant to the position of a third party dealing with a partnership. In particular, the Law provides that legal proceedings against a limited partnership must be instituted against any one or more of the general partners only and not against any of the limited partners. Service can be effected either by delivery to the general partner or by post or delivery to the registered office of the limited partnership. As referred to above, a limited partner will not be liable to a third party for the debts of the partnership unless the partner was participating in the management of the business of the partnership.

Maintenance of records and accounts

The Law requires that certain records be kept at the registered office of the limited partnership and provides that certain of these records are prima facie evidence of the particulars required to be stated therein. The records required to be maintained include the following:

• the partnership agreement and every amendment thereof;
  
  
• (a register of limited partners, showing their full names and addresses;
  
  
• statements of the amount and dates of contributions made, and agreed to be made, by each limited partner;
  
  
• a statement of the amounts and dates of contributions returned to limited partners;
  
  
• the partnership's accounting records;
  
  
• the minutes of all meetings of general partners; and
  
  
• all documents filed with the Greffier.
  
  

Any change in the particulars of the partnership declaration filed with the Greffier must be notified to the Greffier within 21 days together with the prescribed fee and the Greffier will then issue a new certificate of registration. This would include any change in the general partner or the general partners' details, the nature and principal place of the partnership's business, the terms for which the partnership is entered into, its registered office or the name of the partnership. In the case of a change of registered office or name, the change will only be effective once the new certificate has been issued, upon the issue of which the existing certificate shall cease to be valid.

Limited partnerships are required under the Law to maintain accounting records on a similar basis to companies, such that the financial position of the partnership is ascertainable from time to time. The Law requires that the general partners must appoint an auditor to act in relation to the affairs of the partnership if required to do so by the partnership agreement or by limited partners with a contribution greater than 50 percent of the total contribution. An auditor is also required if the limited partnership is carrying on business or providing services as specified in the Law.

Dissolution of a limited partnership

The partnership agreement will normally set out the conditions and procedure for dissolution of the partnership, and it is the responsibility of the general partners under the Law to wind-up the affairs of the partnership, unless a liquidator is appointed for this purpose by the Court. Dissolution is effective from the date of the occurrence of the event in pursuance of which the partnership is dissolved, and notice of dissolution must be filed with the Greffier and published in La Gazette Officielle within seven days. The name of the limited partnership will then be deleted from the register and the partnership's certificate of registration will cease to be valid.

Occurrences which trigger dissolution include any event specified in that behalf in the partnership agreement, the expiration of the fixed term of the limited partnership unless notice of its continuance is filed with the Greffier not less than 15 days before the date of expiration (or, if no fixed term has been specified, upon the expiration of thirty years from the date of registration), and the agreement in writing of all the partners that the partnership be dissolved.

A limited partnership will automatically be dissolved on the death, legal incapacity, retirement, resignation, removal, bankruptcy or dissolution of a general partner, unless the partnership agreement permits the partnership business to be carried on by the remaining general partners and there is at the time of the death or other said event at least one other general partner who does so carry on the partnership business, or unless another general partner is validly appointed to the partnership immediately upon the death or other said event, or unless the general partner is replaced by the unanimous agreement in writing of the remaining partners within ninety days of the death of other said event.

If the general partner is not replaced within the ninety day period the partnership will be dissolved in accordance with the partnership agreement, or in accordance with the directions of the Court, as the case may be.

Notwithstanding the terms of the partnership agreement, it is open to a partner to apply to the Court to dissolve a limited partnership on the grounds that it is being conducted in a manner which is oppressive to any of the limited partners or prejudicial to their interests as limited partners, or alternatively that it would be just and equitable to dissolve the partnership.

On dissolution of a limited partnership, the assets of the partnership will be distributed first to satisfy creditors, second to limited partners who are creditors but not also general partners in accordance with the Law and then in accordance with the partnership agreement. In the absence of any agreement regulating distributions on dissolution, the Law provides a specific order and priority for distributions amongst general and limited partners.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.