Do you want to know how profits & losses are shared in the absence of a limited partnership agreement? If YES, here are 4 best sharing formula. It is common knowledge that a partnership is a kind of business arrangement where two or more persons work together and distribute among themselves all profits and losses.

What is a Limited Partnership?

On the other hand, a limited partnership is a business entity that consists of at least one general partner and one or more limited partners. How it is arranged is that the general partner is an experienced businessperson who provides both financial resources and daily management skills to the limited partnership. A limited partner is an individual or business that offers only capital or financial resources to that limited partnership.

To keep this business entity in shape, state laws usually govern their operations, and many state laws have enacted all or part of uniform partnership laws. An analysis of the key risks and benefits of limited partnerships as to formation, management, legal liability, profit-sharing, and fiduciary duties, can help you decide if this is the right business entity for you.

If two (or more) people want to set up their own business and open a company together, the first thing they need to agree on is what legal form to choose. Since a limited partnership is usually easier to set up than a corporation, the partnership is usually the preferred choice, since it doesn’t require a minimum capital contribution or any fixed capital holdings.

The way the business entity is programmed is that the limited partner contributes a certain amount of money, known as a limited partner contribution, when the company is founded. This of course comes from their personal funds. The amount of this contribution is not regulated by law and can be determined individually, in consultation with the other partners.

In the event something goes wrong with the business or the business arrangement, the limited partner is only liable to the extent of the contribution they made, so their private assets remain untouched. This means that the limited partner is legally limited in their liability. The prerequisite for this, however, is that the contribution (which can consist of both money and material assets) has already been made in full by this time.

Aside from a limited partner, a limited partnership also has a general partner within the company, and who must also be taken into consideration. These two are fully liable to creditors i.e. with the entire assets of the company and, in an emergency, their private assets.

Profit distribution based on the Uniform Limited Partnership Act (ULPA)

Many states in the USA have a legislation in place to regulate the sharing of profits and losses in a limited partnership. Many of these state laws are based off the Uniform Limited Partnership Act (ULPA), which includes its 1976 revision called the Revised Uniform Limited Partnership Act (RULPA), a federal law that aims to regulate limited partnerships.

But that notwithstanding, states are not obliged to adopt this legislation. What many states do is that they draft their own laws pertaining to limited partnerships. This is particularly relevant when it comes to profit distribution within a limited partnership. Limited partnerships are encouraged to draw up their own agreements on how profits are to be shared when the company is formed. If they fail to do so, and a dispute is brought before a judge, the judge will simply refer them to their state partnership legislation to resolve the conflict.

For example, in New York, the NY Pship L § 121-503 (2016) states that in the absence of a partnership agreement, profits and losses will be allocated on the basis of each partner’s value, which is based on the value of each partner’s contribution. However, it is up to you to make sure you are familiar with your state’s partnership legislation so that you can avoid legal pitfalls.

For this reason, it is extremely important for limited partners to draw up a plan for sharing profits, so that you are legally protected from your business partners. Always consult with a legal professional to ensure that any contracts you enter or disregard will not land you in legal trouble down the road.

How are Profits and Losses Shared in the Absence of a Limited Partnership Agreement?

When forming a partnership, the business owners have the option of creating an agreement that dictates how profits or losses pass through to members of the partnership. In the absence an agreement, the partners will share profits and losses equally. If an agreement exists, partners divide profits based on the terms specified. Any reason can be used as the basis for establishing a profit-sharing ratio, but the two main factors are responsibility and capital contributions.

In accordance with the provisions of the partnership deed, the profits and losses made by the firm are distributed among the partners. However, sharing of profit and losses is equal among the partners, if the partnership deed is silent. This is what is generally obtainable and acceptable.

But there are other ways  profit and loss can be shared between partners in the absence of  a limited partnership agreement. They include;

1. Division by Responsibility

One way to share profit and losses in the absence of a limited partnership agreement is to divide them by the responsibility carried out by each member. The amount of responsibility a partner has is usually known by the partners when the partnership is formed. For example, Partner A and Partner B form a partnership. Partner A is responsible for most of the day-to-day operations of the small business. Due to Partner A’s added responsibility, the partnership agreement is drafted to state, “Partner A shall receive 70 percent of profits and Partner B shall receive 30 percent of profits each year.”

2. Money Contribution to the Partnership

Yet another way to share profit and losses in the absence of a limited partnership agreement is to base it on the amount of money each partner brings to the table. When forming a partnership, partners can give as much or as little capital to the partnership as they want. Often, one partner will contribute more to the partnership than another partner. If this is the case, the partner may want to share profits based on the amount of contribution he makes.

In this example, if Partner A contributes $400,000 in capital and Partner B contributes $100,000, then the partners could add a clause to their partnership agreement stating, “Partners shall divide profits based on the proportion of capital in the partner’s capital accounts on the last day of the year.” Here, Partner A would receive 80 percent of profits, and Partner B would receive 20 percent of profits.

3. Mutually Beneficial Terms

When intending to share profit and losses in the absence of a limited partnership agreement, partners can decide to use other related factors. The profit-sharing ratio can be any arbitrary number the partners agree upon. This means the partners can look at the two main factors and negotiate a profit-sharing ratio both find mutually beneficial. As long as the terms are agreed upon and in the partnership agreement, that is how the partners will split the profits.

For example, Partner A contributes $400,000 of capital and has a majority of the responsibility in the partnership. Partner B contributes $100,000 of capital and does not help much in partnership responsibility. The partners can agree that Partner A receives 10 percent of profits and Partner B receives 90 percent of profits, or vice versa. The partners must agree but absent an agreement, they will share profits evenly.

4. Profit and Loss Appropriation Account

Another way to share profit and losses in the absence of a limited partnership agreement is through the use of a profit and loss appropriation account. The final figure of profit and loss to be distributed among the partners is ascertained by Profit and Loss Appropriation Account. In this account, how the profit or loss is to be distributed among the partners of the firm is shown.

After the Profit and Loss Account, Profit and Loss Account Appropriation is prepared for the firm. Through this account, all adjustments in respect of partner’s salary, partner’s commission, interest on capital, interest on drawings, etc. are made.

It starts with the net profit/net loss and the Profit and Loss Account is transferred to this account. Certain adjustments such as interest on drawings and capital, salary and commission to partners are required to be made.

Ejike Cynthia
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