Simple partnership agreement. Essential terms, subject matter and parties to a simple partnership agreement

A simple partnership agreement, the essential conditions of which we will discuss in the article, is used primarily to minimize tax deductions. Some entrepreneurs, however, find it difficult and require some knowledge. Let's see if this is so.

The concept of a simple partnership agreement

The main characteristics of this agreement are enshrined in Art. 1041 of the Civil Code of the Russian Federation. Normally, its general description and key conditions of detention are given. The agreement is also called a joint venture agreement. In accordance with it, two (or more) people agree to combine certain amounts of money and work without creating a legal entity. Deposits under a simple partnership agreement can be used for profit or other activities that are not contrary to law.

Thus, to form such a union, 2 conditions must be fulfilled. Firstly, it is necessary to combine their contributions, and secondly, to determine the type of joint activity. One important conclusion follows from this. An agreement, according to which the parties undertake to carry out joint activities without pooling their funds, cannot be considered a simple partnership agreement - the essential conditions in this case will be fulfilled only partially.

General interest

It is very important to determine it. The parties to a simple partnership agreement pool their funds to carry out such joint activities that would satisfy their common needs and be consistent with their interests. This distinguishes the agreement from many civil contracts.

Each participant acts simultaneously as a debtor and creditor in relation to the others. The law prohibits the inclusion in the agreement of the condition of the need to provide reciprocal satisfaction for someone else's benefit. Such provisions will be deemed null and void by the terms of the contract. Parties to the agreement do not just pool their funds. They conduct common business, make deals. Participants share profit and costs among themselves. A partnership may have two or more members. They not only invest their money, but also have the right to use the property obtained in the process of conducting common business.

Nuances

A simple partnership is not necessary to register with the IFTS, extrabudgetary funds and statistical agencies. This is due to the fact that the conclusion of the contract does not lead to the formation of a legal entity. However, there is one exception. Registration is necessary if the purpose of a simple partnership is to sell excisable goods. But in this case, the participant draws up the necessary documents, and not the whole society (Article 180 of the Tax Code).

Information disclosure

Legislation allows for the creation of a secret partnership. Participants have the right not to disseminate information on the creation of the company to third parties. This provision, however, does not apply to regulatory and other bodies with authority.

The procedure for conducting joint activities in a secret partnership is regulated by Art. 1054 Civil Code. Formally, in such a society, each participant conducts business independently. He has the right not to notify counterparties that he is making transactions in the interests of the partnership. In this case, the participant is liable for obligations to creditors.

Essential terms of a simple partnership agreement

Recall that they are recognized as such provisions, the fixation of which on paper means that the agreement is concluded. The essential terms of a simple partnership agreement are:

1. The general goal of the activity, the obligation to carry out the necessary actions to achieve it.
2. Contributions of participants, their size, share, monetary value.
3. Other conditions provided by law for this type of contract.

Common property

Unless otherwise provided by the agreement, participants' contributions are assumed to be equal in value. The property contributed by them is generally considered to be common property. All this follows from the provisions of articles 1042 (paragraph 2) and 1043 (paragraph 1) of the Civil Code.

At the same time, the obligations of the participants in the maintenance of the joint property and the rules for reimbursing the costs of their implementation are fixed by the contract. Take into account the fact that if these issues are not addressed in the agreement, it will still be recognized as concluded. But in this case, there is a risk of conflicts between the comrades themselves, and between society and the tax office. The fact is that the IFTS may well regard the proceeds as gratuitous.

goal

The subject of the agreement is the joint conduct of certain activities. It should be aimed at achieving the goal common to all members of the partnership. As a rule, people create a society to make a profit. However, the goal may not be related to commerce. Partnerships are created, for example, to conduct research, operate an object, create a work of art, etc. The agreement must contain an indication of the consent of the participants to act together to achieve the goal.

Parties to the agreement

Who can become a party to a simple partnership agreement? Individuals registered as entrepreneurs or commercial enterprises are entitled to become parties if the goal is to make a profit. Accordingly, in this case, non-profit structures and institutions cannot be partners.

Another thing is if the company is created not for doing business. In this case, almost any person can become a participant. Exceptions are established only for entities with special legal capacity. We are talking about non-profit organizations, unitary enterprises, etc. If they conclude an agreement, they can conduct activities that are appropriate to the volume of legal capacity.

Another important point - the same subject can be a member of several simple partnerships.

Agreement form

There are no special rules in the legislation on how to draw up a contract. Accordingly, the parties should be guided by the general rules for the execution of agreements. In accordance with Art. 161 (Subitem 1 Clause 1) of the Civil Code is obligatory to draw up a written contract if at least one legal entity participates in it. However, it should be noted that failure to comply with this requirement does not yet invalidate the agreement. If there is no written form, then the parties are not entitled to refer to the testimony of witnesses when confirming the conclusion of the transaction and approval of its conditions. Nevertheless, the legislation allows entities to cite any other, including written, evidence.

As a general rule, a written contract does not need to be notarized.

Validity

Usually, upon reaching the goal of creating a society, the agreement is terminated. If the participants conduct activities for profit, and the content of the simple partnership agreement does not contain clear terms, then the document is recognized as unlimited. He, in turn, will be terminated if one of the participants leaves the company, and the remaining parties do not express an additional agreement to keep the partnership.

Any entity may withdraw from a perpetual contract. To do this, you must write a statement three months before the date of the proposed release.

Rights

Before drawing up a contract, it is necessary to agree on the volume of legal opportunities for participants. In general terms, the rights of partners are as follows:

• case management;
• participation in joint activities;
• receipt of any information related to the work of society.

Decisions connected with the general affairs of the partners shall be taken by mutual agreement, unless another procedure is established in the contract. The question of voting should be clarified here. It seems that decision-making should be carried out in a partnership by a majority of votes in proportion to contributions or shares in property.

Do I need a power of attorney?

Each of the comrades can conduct the affairs of society. Powers may be assigned to one participant. In the latter case, the rest of the comrades do not lose their rights to perform legally significant actions on behalf of the organization. Subjects may exercise their powers on the basis of:

• gender attitudes;
• one-time power of attorney;
• direct indication in the contract.

When a joint transaction is concluded by several partners, it is not necessary to issue a power of attorney.

It should be noted that the lack of authority to perform any action does not mean that the participant’s behavior is unlawful. The remaining partners may well approve the transaction and decide on compensation for expenses incurred by a member of the company at the expense of the common property. However, the law allows participants to:

1. To challenge a transaction concluded by a partner who does not have the appropriate authority. To do this, they will have to prove that the other side knew or should have known about it. The exception is cases when a transaction is concluded on behalf of a secret partnership.
2. Demand from the participant compensation for losses incurred by the company as a result of its unlawful actions.

Responsibilities

These include:

1. Contribution to the property of the company.
2. Implementation of joint activities provided for by the contract.

As a contribution, in accordance with Art. 1042 of the Civil Code, it recognizes everything that the subject brings to the partnership. This includes money, other property, professional skills and special knowledge, business reputation and relationships. Deposits are considered equal by default, unless otherwise provided by contract.

Important point

It must be said that the importance of business ties and reputation for a common cause is difficult to overestimate. However, it is almost impossible to document them. The business reputation is considered to be a positive perception of the brand, trust in the partnership, the name of the company, the personalities of its leaders, etc. Since all this is not amenable to monetary valuation, it is impossible to take them into account. Nevertheless, the parties may well agree on an assessment of this kind of contribution and take it into account in relations.

Agreement Execution

In practice, the implementation of the terms of the contract is:

• to make contributions;
• compensation for the costs of maintaining joint property;
• distribution of income derived from activities;
• distribution of responsibility between participants for obligations to third-party (third) parties.

Let's talk briefly on the points.

If the contribution is property, then registration of the transfer of values ​​to a partner who conducts common business will be recognized as his contribution. As for the non-property contribution, then everything is very conditional. The participants themselves decide whether there was a benefit from its use or not. One way or another, both of them are almost impossible to prove.

Now let's talk about the content of the property. To begin with, we define what should be considered common material values. According to the general rules, property that the comrades owned on the basis of ownership, things obtained in the course of joint activities, fruits, products, incomes are joint property. Each participant is entitled to a certain share of it. It should be noted that the legal regime of shared ownership does not apply to values ​​belonging to the entity on any other basis (operational management, economic management, etc.). At the conclusion of the contract, the partners may fix in it a provision that the property that is contributed as a contribution does not enter into the joint ownership of the company.

In the agreement, the parties establish the procedure and features of the content of common values ​​and reimbursement of expenses for this. If there is no such provision, each participant will compensate for expenses in accordance with the value of his contribution. Of course, it is impossible to foresee all cases in advance. However, comrades can at any time enter into an additional agreement in which they reflect moments not provided for by the contract.

Conducting common affairs, as a rule, is recognized as the conclusion of transactions on behalf of the company, the fulfillment by partners of obligations to third parties, accounting, payment of fees, taxes, etc. Most often all this activity is carried out by one participant. His authority may be confirmed by agreement or power of attorney.

The distribution of income is carried out in proportion to the value of the deposit, unless otherwise specified in the contract or supplementary agreement. It must be said about a very important thing. The presence in the contract of provisions establishing the procedure for the distribution of profits does not automatically make it commercial. After all, even non-entrepreneurial activity may well be profitable. In this regard, experts recommend that in any case, determine the order of income distribution.

The responsibility of the participants will depend on the nature of the partnership. If it is not connected with commercial activity, then each member of the company is liable for the general obligations with his property in proportion to his contribution. If the purpose of the partnership is commercial, then the participants are jointly and severally liable.

Termination of contract

It occurs in the following cases:

1. Declaring one of the participants to be completely / partially incapacitated, missing. This rule applies only to individuals.
2. Declaring one of the participants bankrupt.
3. The death of a friend or the reorganization of a legal entity.
4. A participant withdraws from a perpetual contract upon application.
5. Termination of the agreement concluded for a certain period of time, at the request of a partner for good reason. At the same time, the rest of the members are compensated for real damage resulting from the participant’s withdrawal.
6. Expiration date.
7. Allocated shares at the request of the creditor.

However, even if any of these conditions occurs, the partnership may not cease to exist. For this, the agreement should provide for the preservation of the company (if it is, of course, not bilateral).

Tax optimization

Individual entrepreneurs and legal entities are entitled to exemption from obligations to pay VAT, if for 3 consecutive months the profit without taxes has not exceeded 1 million rubles. The relevant provision is enshrined in Art. 145 Tax Code. If the company has a desire to receive exemption, but the expected profit is expected to be greater than the specified amount, you can use the following method. A new legal entity is being created in accordance with the requirements of the legislation, which will implement the sale of services and goods. If the contract correctly indicates the shares of partners, then the founder and the created organization will have the opportunity to take advantage of Art. 145 Tax Code.

Enterprises can use the cash method if in the previous 4 quarters the revenue did not exceed 1 million rubles. for each quarter (Article 273 of the Tax Code). Revenues that are distributed in favor of the payer with his participation in a simple partnership are recognized as non-operating. If an entity enters into an agreement and sells products, provides services or works within the framework of this agreement, then the revenues will also be considered non-operating. In this case, the requirement of paragraph 1 of Art. 273 and society can use the cash method.

In a similar way, you can go to the simplified tax system. To overcome the limit on the amount of income established by the Tax Code, an agreement is concluded on the joint conduct of activities with any individual entrepreneur or legal entity. Revenues to be received are recognized as non-operating.