What is a Partnership?

A partnership is not an entity – it is merely a form of shared ownership of property and an agreement to share certain benefits and obligations.

There are 2 types of partnership:

1. General law partnership: a relationship between parties carrying on a business with a view to a profit.
2. Tax law partnership: For income tax purposes, a partnership not only includes the general law definition of partnership, but also includes persons “in receipt of ordinary or statutory income jointly” (i.e., together).

A company is specifically excluded from the definition of partnership.

What factors are used to determine whether a partnership exists?

Where taxpayers receive income jointly, this is clearly a partnership for tax purposes.

However, whether a general law partnership exists (i.e., the parties are carrying on business together) is more difficult to show, as it is a question of fact. The existence or absence of a partnership agreement is not conclusive evidence of an intention (or a lack of intention) to act as partners. However, a partnership agreement normally provides good evidence that the parties intend to be in partnership (although this may not be enough).

Some of the factors the ATO takes into account in determining whether a general law partnership exists are:

1. The mutual assent and intention of the parties – a written partnership agreement, although not essential, is a strong indicator that a genuine partnership exists;
2. Joint ownership of business assets – the ATO also looks to see that the partners are jointly liable for the debts of the business;
3. Registration of business name – the business name should be registered in the names of all the partners;
4. Joint business account and the power to operate it – the bank should be aware that the account holders are acting in partnership. If the partnership consists of a husband and wife then they should both have the power to operate the account.  It should be an account that is separate from their personal accounts.
5. Extent to which the parties are involved in the conduct of the business – if the parties are actively involved in the conduct of the business, the ATO is more likely to agree a partnership exists.
6. Extent of capital contribution – the contribution of capital should be made jointly where possible;
7. Entitlement to share of net profits – profits should be distributed in accordance with the terms of the partnership agreement, if there is one, or equally if there is no partnership agreement.
8. Business records – separate partnership records such as books of account, minutes of partnership meetings and so on should be kept. These records should be different from the parties’ personal and other business records.
9. Trading in joint names and public recognition of the partnership – the parties should promote themselves to the world at large that they are acting in partnership. This is particularly important where one partner may do a large amount of work, for example, where only one partner is a qualified tradesperson.  When conducting work for customers, a tradesperson should make it clear that the customer is dealing with a partnership and not simply the individual.  All the invoices, business letters, tenders and advertising should be in the partnership name.

The above factors are all factors that the ATO takes into account, but if one or two are missing it does not mean a partnership does not exist.  Other factors may also be important.

A joint venture can often be a partnership

Often, people say they are going into a “joint venture” together with no real thought as to what they mean.  Yet the distinction is very important – if they are in partnership they must share income jointly, whereas in a joint venture the income and deductions are accounted for separately by each of the venture partners.

Importantly, if the parties are not in partnership, they may not be jointly and severally liable for the partnership debts and liabilities (refer below under “Disadvantages of a partnership”).

There is no settled meaning of “joint venture”.  A useful starting point is that a joint venture is normally an agreement to share output, rather than income.

Partners may be individuals or other entities

It should be noted that the partners of a partnership do not have to be individuals – they may instead be companies or trusts (or a combination of one or more individuals, companies and/or trusts).  Our partnership deed allows for partners that are either individuals or “entity partners” such as trusts or companies.

Partnership of discretionary trusts

It is quite common for some (or even all) of the partners of a partnership to be discretionary trusts (or rather, for some or all of the partners to be the trustees of their respective discretionary trusts).

A partnership of discretionary trusts may provide additional advantages as compared to a partnership of individuals, including in particular:

• asset protection – as each partner is a discretionary trust, the personal assets of the individuals (i.e., the beneficiaries of each discretionary trust) are generally protected; and
• flexibility of distributions – the trustee of each discretionary trust can distribute the trust’s share of partnership income among the trust’s beneficiaries in any way it wishes. Thus, tax can be minimised by distributing income to those beneficiaries on the lowest tax rates, including any corporate beneficiaries.

However, operating a partnership of discretionary trusts is complex, and advice should be sought from your accountant in relation to the above possible advantages and other issues.

Operating a partnership

There are a number of important issues to consider when operating a partnership.

Advantages of a partnership

The main advantage of a partnership is simplicity.  Other advantages are:

• Less costly to establish than a company or a trust;
• Inexpensive to run;
• Easy to understand (especially if it is a partnership of individuals);
• Can provide some flexibility in the partnership agreement; and
• Income splitting between partners.

Also refer above to the additional advantages for a partnership of discretionary trusts.

Disadvantages of a partnership

The main disadvantages of a partnership are:

• The partners are jointly and severally liable (i.e., each partner is liable not only for their share of the partnership debts but also for those of the other partners. At worst, one partner can be liable for the entire partnership’s debts);
• Generally no asset protection (especially where the partners are individuals); and
• Some tax disadvantages.

Entry and retirement of partners

When a new partner is admitted to a partnership or a partner retires from a partnership, the current partnership ceases and generally a new partnership is created.

The ATO’s requirements regarding a change in partners are set out in the instructions for partnership tax returns, available at www.ato.gov.au (regarding “reconstituted partnerships”).  Subject to the below administrative concession, the ATO generally requires the ‘new’ partnership to obtain a new tax file number (‘TFN’) and ABN and the ‘old’ partnership to lodge a tax return for the period from the beginning of the tax year to the date the partnership was reconstituted (i.e., the date the membership of the partnership changed).  The new partnership (or possibly a sole trader, if there is only one ‘partner’ remaining) will need to lodge a tax return for the period from the date of the reconstitution to the end of the tax year.

On the entry and retirement of partners, there are a number of important tax issues including those relating to the following (note that this list is not exhaustive):

• Stamp duty;
• Trading stock;
• Plant and equipment;
• Work-in-progress;
• GST; and
• Capital gains tax (CGT).

Use of an agent/manager

A company agent/manager is sometimes used to act on behalf of the partnership (especially where it is a partnership of trusts).  This is done predominantly for administrative ease.  Although not absolutely necessary, each of the partners would generally have a proportionate number of shares in the company acting as agent and appoint a director to the agent’s board.

The partnership agreement should ensure that the agent can only act under the direction of the partners (and it should in fact only act under such direction).  Otherwise, there is a risk that the agent may instead be treated as a trustee of a trust (with the partners being the beneficiaries).

GST and ABN issues

A partnership may make supplies and acquisitions of goods and/or services.  This will either be done by the partnership itself or, if it has an agent acting for it, through the agent.

If there is no agent, the partnership should obtain an ABN and, if it is necessary (i.e., its turnover is above the threshold) or it chooses to do so, register for GST.

However, if there is an agent, the question will arise as to who should account for GST and how should it be done.

The GST Act provides two ways that a partnership acting through an agent can account for GST:

• Option 1: By treating the agent as a separate person in all of the transactions made by the partnership, so that:
  • the partnership would make all of its supplies to the agent (and issue a tax invoice to the agent), which would then on-supply these to the partnership’s customers (with the agent then also issuing its own tax invoice); and
  • all acquisitions of the partnership would be made first by the agent (which would claim an input tax credit), and the agent would then on-supply those acquisitions to the partnership (with the agent paying GST on each supply and the partnership claiming an input tax credit).

This is an artificial option provided by Division 153-B of the GST Act (since this is not how agency transactions are legally treated) and can be more complicated than the next option; or

• Option 2: By treating all supplies and acquisitions that the agent makes as being made by the partnership itself (refer Division 153-A of the GST Act). This is actually how the supplies and acquisitions are treated at law, and is the more common way of accounting for GST.

Option 1

If your partnership chooses to use the first option for accounting for GST, the registration question is quite simple: both the partnership and agent will need to obtain ABNs and register for GST (if necessary), and will each issue (and receive) their own tax invoices.  The partnership and agent will be considered to make supplies to and from each other.

Option 2

If your partnership chooses to use the second option, even though the partnership may act through an agent, it is the partnership, and not the agent, that is liable for all GST and which can claim input tax credits. A Goods and Services Tax Ruling issued by the ATO, GSTR 2013/1 (which supersedes previous GST rulings, including GSTR 2000/17, which has been withdrawn), states (at paragraph 95):

“…when an agent uses his or her authority to act for a principal, then any act done on behalf of that principal is an act of the principal.  An entity therefore makes a supply or acquisition if their agent makes it on their behalf.”

Therefore, the partnership (as the principal) needs to have an ABN and be registered for GST.

The partnership can issue tax invoices and receive tax invoices in its own name, for GST and input tax credits purposes.

However, if the partnership wants the agent to be, to all intents and purposes, the ‘face’ of the business and able to issue (or receive) tax invoices in its own name, the agent will need to, at the least, obtain an ABN.  Under GSTR 2000/37, a principal can rely on tax invoices issued or received by an agent with the agent’s name and ABN.  If the agent does not make any supplies or acquisitions in its own name – i.e., it only acts as agent for the partnership and does not do anything else – it will not need to register for GST, subject to one concern.

The concern is that, although any tax invoice issued by that agent (with the agent’s own ABN) should be valid, if someone dealing with the agent receives such a tax invoice and then checks the online ABN register to confirm that the ABN is valid, it will see that the agent is not registered for GST.  Therefore, they may think that they are not able to claim an input tax credit (despite the fact that they should be able to, as the taxable supply is actually being made by the partnership (which is registered in this scenario), via the agent).

This problem can be avoided if the agent also registers for GST.  However, this does mean that there is the added administrative hassle of the agent needing to lodge business activity statements (BASs).  If the agent does not do anything else except act as agent for the partnership, it should have no supplies and no acquisitions and should simply need to lodge nil statements each period (unless the agent is paid for its services as agent or otherwise uses the first option above).

Therefore, in summary:

• The partnership will always need to register for GST (if its turnover is higher than $75,000 a year ($150,000 for non-profit organisations) or otherwise if it voluntarily opts in) and should lodge all BASs for the business.
• The agent will need an ABN if the partnership wishes to issue and receive tax invoices through the agent (i.e., in the agent’s name).
• If the agent does not register for GST, there may be problems with purchasers who think they cannot claim an input tax credit, but it will not have to lodge BASs.
• If the agent does register for GST, purchasers should have no reason to question the validity of tax invoices, but it will have the added hassle of lodging BASs (but these are likely to be nil statements).
• In any event, the agent will need to register for GST if it has its own enterprise, if it is paid by the partnership for its services as agent, or if the partnership and agent use Division 153-B in accounting for GST (provided in all cases that it meets the turnover threshold, or chooses to voluntarily register if not), and will lodge BASs taking any relevant supplies or acquisitions into account accordingly.

This is a complex area and we recommend you obtain professional advice if you are at all unsure about operating in this area.

Features of the Partnership Agreement

Our partnership agreement is designed for a partnership of both individuals and non-individuals (e.g., trusts and companies).  It is therefore a more complex agreement than a ‘standard’ partnership agreement only for individual partners.

The following are some of the features of our Partnership Agreement.  However, the agreement should be read in full to fully ascertain the relationship between the partners.

• The agreement allows for the appointment of an agent but, if no agent is appointed or the agent ceases acting and is not replaced, the powers of the agent may be exercised by the partners acting jointly – refer subclause 4.5.
• If there is an agent, the agent has “all the powers and legal capacity of a natural person in conducting the Business and in dealing with the Partnership assets” (subject to the direction of a majority of the partners) except when it comes to selling the business or a majority of it – refer to subclause 4.4.
• The appointment of the agent is made on the basis that any actions of the agent are subject to the direction of a majority of partners, and the Agent is only to act as agent on behalf of the Partners and is never to act in its own right – refer to subclause 2.2(b).
• The partners indemnify the agent in relation to any costs it incurs when acting as their agent – refer subclause 4.1(c).
• The agent can be removed by a resolution of partners holding together at least a 75% interest in the partnership – refer subclause 4.2. The agent can also retire by giving one month’s written notice – refer subclause 4.3.
• If necessary, the partners will need to register the name of any business carried on by the partnership with the authority responsible for registering business names in the relevant State or Territory – refer subclause 2.3.
• If there is an agent, then the agent will open a bank account and be signatory to any cheques made out from that account. If there is no agent, then the partners will need to open the account and agree on how cheques should be signed (e.g., by a certain number of partners or by specific individuals) and should work this out with their bank – refer subclause 2.15.
• Each partner’s initial interest in the partnership is specified as a percentage in the schedule. This will generally be calculated by reference to the capital contribution of each partner, but the interest is the same with respect to both the income and capital of the partnership. For example, if the partner has a 50% interest in the partnership, the partner is entitled to 50% of the income (or loss) of the partnership and has a 50% interest in the assets of the partnership.  If a partner is entitled to a proportion of capital that does not reflect the capital the partner has contributed, that partner must pay the other partners to make up the balance (from the profits of the business or as otherwise agreed).   The partners can agree in future if they wish to share income and capital in different proportions – refer subclauses 2.4 and 2.5.
• If a partner puts in extra capital after the partnership is established, that will not affect the partner’s percentage share in the schedule, but will instead be treated as a debt owing by the partnership to the partner, with interest, unless otherwise agreed by the partners – refer subclauses 2.5(g) and 2.5(h).
• The partners may periodically draw money from the profits of the partnership on a quarterly basis or otherwise as and when they agree. If it is found that any drawings for the year exceed the available profit, the partner or partners who overdrew their share may be required to repay that amount to the partnership – refer subclause 2.7. The partners may also agree to pay one or more partners a ‘salary’ from the partnership (although this may give rise to different taxation considerations – speak to your accountant about this) – refer to subclause 2.8.
• Other amounts owing by a partner to the partnership or by the partnership to a partner may carry interest – refer subclause 2.17.
• Each partner owes certain duties to the partnership (refer subclause 2.12) and is also prohibited from doing certain things without the consent of the other partners, including transferring, or effectively transferring, their interest in the partnership (refer subclause 2.13). The partners should be careful of these duties and prohibitions, because the other partners may be able to expel any partner who breaches them or other material provisions of the agreement – refer subclause 5.5.
• A partner can resign from the partnership by giving notice to the other partners of the period specified in the schedule, and if his or her interest is not bought by the other partners, the partner can sell their interest to someone (approved by the other partners) outside the partnership – refer subclause 5.1.
• The partnership does not come to an end by reason only of a partner leaving or dying (if an individual), or another partner being added, and the remaining/continuing partners expressly agree that the partnership will continue beyond such an event, unless there is only one partner left or all the partners agree to bring the partnership to an end – refer subclause 5.10. If a partner has left the partnership for whatever reason, the other partners may buy that partner’s share in the partnership – refer subclause 5.1 (but if none of them or any other approved person does, the partnership will come to an end in any event – refer to subclause 5.1(d)).
• The agreement provides for meetings between the partners and/or the agent, and a partner may appoint a representative to attend a meeting in their place – refer clause 3.2. The chair of a meeting of Partners does not have a casting vote – refer subclause 3.4(b).
• If the partners cannot agree on something or otherwise are in dispute, the dispute must generally first be referred to mediation, and then (if unsuccessful) to arbitration, before they can go to court – refer clause 6.
• No partner can sell or assign his or her interest in the partnership (except in certain specified circumstances) without the prior written consent of all of the other partners, and any new partner must sign an agreement with the same effect as this agreement – refer subclauses 2.13(h) and 2.14.
• The partners can vary the agreement at any time by all signing a written variation, amendment or further agreement – refer subclause 9.10.
• Some partnership agreements include a “restraint of trade” clause. This one does not, as the terms of such restraint are often specific to the requirements of the particular partnership (and overly restrictive ones can be struck down by the courts).  If the partners desire that any partners leaving the partnership should be restrained from entering or carrying on similar businesses, they should all enter into a separate agreement to that effect.
• Depending upon the State or Territory in which the partnership carries on business, the partners may be required to notify the public when the partnership comes to an end. This requirement is reflected in the agreement – refer subclause 5.9.

Disclaimer

This guide is intended to be a guide only. You should not act solely on the basis of the information contained in this Guide because many aspects of the material have been generalised and the tax laws apply differently to different people in different circumstances. Further, as tax and other laws change frequently, there may have been changes to the law since the Guide was written.

Australian Business Structures Pty Ltd, its directors, employees, consultants and author expressly disclaim any and all liability to any person, whether a purchaser or not, for the consequences of anything done or omitted to be done by any such person relying on a part or the whole of the contents of this publication.

None of the comments in this Guide are intended to be advice, whether legal, professional or financial. Do not act on the information contained in this Guide without first obtaining specific advice regarding your particular circumstances from a tax or legal professional.

Copyright

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Law

The law is as stated 1 January 2018.