Jersey: Limited Partnerships In Jersey

INTRODUCTION

Different structures are available in Jersey to be used for funds and a combination of structures may also be permitted. This memorandum focuses on the use of a limited partnership as the Fund vehicle.

The consent of the Commission is required to the creation of partnership interests under the Control of Borrowing (Jersey) Order 1958 (the "COBO Order"). An application for consent under the COBO Order must include certain prescribed information in relation to the general partner of the limited partnership (although not in relation to the limited partners). If the general partner is an existing Jersey incorporated company, the JFSC will merely require confirmation that the relevant information previously provided remains accurate.

Limited partnerships that are collective investment funds are subject to the Collective Investment Funds (Jersey) Law 1988, so that permits are required for functionaries of a limited partnership where partnership interests are to be offered to the public. The general partner as the manager of the partnership will undoubtedly require a permit, as will any other functionaries providing services to the limited partnership fund.

ESTABLISHING A LIMITED PARTNERSHIP

In order to establish a limited partnership, a minimum of two partners – one a general partner, one a limited partner – is required.

Delivery of a declaration pursuant to Article 4 of the LP Law, containing the certain matters detailed in Article 4, to the Registrar of Limited Partnerships is required.

The declaration must contain:

1. the name under which the limited partnership is to be conducted;
   
   
2. the intended address of the registered office of the limited partnership;
   
   
3. the full name and address of each general partner or, in the case of a body corporate, the place where it is incorporated and its registered or principal office;
   
   
4. the term, if any, for which the limited partnership is to exist or, if for unlimited duration, a statement to that effect.
   
   

The registrar of limited partnerships maintains a register of all declarations and, on the registration of a declaration, he will issue a certificate to the effect that the limited partnership has been registered.

It is only by having the minimum of a general and a limited partner, and on issue of this certificate, that an association of persons becomes a limited partnership.

ESTABLISHING A LIMITED PARTNERSHIP – PRACTICAL MATTERS

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

1. An application must be submitted to the JFSC under the COBO Order, for consent to the creation of interests in the limited partnership. As partnership interests will be created on the execution of the limited partnership agreement, this consent needs to be obtained prior to execution of the partnership agreement.
   
   
2. An application for the approval of the proposed name of the limited partnership should be submitted to the Registrar of Limited Partnerships. The Registrar of Limited Partnerships has discretion to refuse to register a limited partnership if he disapproves of the name.
   
   
3. The declaration of limited partnership signed by each general partner must be delivered to the Registrar of Limited Partnerships together with the prescribed fee of £500. There is no requirement to file the partnership agreement and no requirement to provide the names of the limited partners.
   
   

On registration of the declaration the Registrar will issue a certificate of registration of the declaration of limited partnership.

On obtaining the consent, approval and certificate referred to above, the partnership agreement should then be signed by all the partners. There is no restriction on the number of partners. On execution of the partnership agreement, the partnership is constituted as a limited partnership under the LP Law.

The certificate of registration of the declaration of limited partnership can 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.

GENERAL PARTNERS

A general partner in a limited partnership has all the rights and powers and is subject to all the restrictions and liabilities of a partner in a partnership without limited partners except that, without written consent or ratification by all the limited partners, a general partner has no authority to:

1. do anything which makes it impossible to carry on the activities of the limited partnership;
   
   
2. possess limited partnership property, or dispose of any rights in limited partnership property, for other than a partnership purpose; or
   
   
3. admit a person as a general partner or admit a person as a limited partner, unless the right to do so is given in the partnership agreement.
   
   

Clearly, the restriction in paragraph (3) above can be and will usually be removed from most limited partnership agreements. However, the restrictions in paragraphs (1) and (2) above will not generally be consented to in the partnership agreement, and in particular in the case of restriction (2), 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, perhaps, even 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. However, there is clearly a balance to be reached on this point between the interests of the general partner and the interests of the limited partners, which are likely to be different in this regard.

Any property of a limited partnership which is transferred to or vested in or held on behalf of any one or more of the general partners or which is transferred into or vested in the name of the limited partnership is held or deemed to be held by the general partner, or, if more than one, by the general partners jointly, as an asset of the limited partnership in accordance with the terms of the partnership agreement. 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 into or vested in the name of the partnership shall be held or deemed to be held by the general partner in accordance with the partnership agreement. If there is more than one general partner, the property of the partnership is to be held or is deemed 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 LP Law.

The property of the limited partnership is treated as being held on trust by the general partner for the limited partners. This means that it is not possible for Jersey immoveable property to be held directly by the general partner for the partnership, as trusts of Jersey immoveable property are not permitted under Jersey law. However, this does not preclude the holding of immoveable property situated elsewhere or the holding of Jersey immoveable property through a company owned by the general partner.

Any debt or obligation incurred by a general partner in the conduct of the activities of a limited partnership shall be a debt or obligation of the limited 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. It is also recommended 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 LP Law does not specifically state that the general partner is to be liable for all the debts and obligations of the partnership. However, this is implicit from the general statement in the LP Law that a general partner is subject to all the liabilities of a partner of a general partnership.

There is also specific provision for the rules of customary law applicable to partnerships, so far as not inconsistent with the LP Law, to apply to limited partnerships. It may, therefore, be necessary in some circumstances to look at the existing customary law in relation to general partnerships in order to determine the exact scope of the rights and obligations of a general partner, particularly where the partnership agreement does not exhaustively define those powers and obligations.

For the protection of the property of the partnership, the LP Law also provides that creditors of a partner in that partner's capacity other than as a partner of the limited partnership shall have no claim against the property 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.

LIMITED PARTNERS

Limited partners – generally

Limited partners have the same rights as general partners:

1. to inspect the limited partnership's books and records;
   
   
2. to receive information of all matters affecting the limited partnership and to be given a formal account of partnership affairs whenever reasonable.
   
   

A limited partner cannot dissolve the limited partnership by notice.

A limited partnership is not (unless the partnership agreement provides otherwise) dissolved by the death, legal incapacity, bankruptcy, retirement or withdrawal from the limited partnership of an individual limited partner, or the dissolution, bankruptcy or withdrawal from the limited partnership of a body corporate.

Limited partners – profit sharing

A limited partner has, subject to the LP Law and the partnership agreement, the right to a share of the profits of the limited partnership, but only if the limited partnership is solvent when, and immediately after, payment is made.

Even then, for six months from the date of receipt of any profit payment where the limited partnership is insolvent, any such payment must be repaid by that limited partner to the extent that the repayment is necessary to discharge a debt or obligation of the limited partnership incurred during the period that the amount paid out represented an asset of the limited partnership.

Limited partners – capital contributions and payments

A limited partner is liable under the LP Law to contribute to the partnership the amount agreed to be contributed by that limited partner, which will normally be set out in the partnership agreement. The LP Law specifically permits contributions to be made by a limited partner in money, property or services.

A limited partner cannot, on dissolution or otherwise, receive any capital payment or any payment representing a return of any part of his capital contribution to the limited partnership unless at the time of and immediately following such payment the limited partnership is solvent.

For a period of six months from the date of receipt by a limited partner of any payment representing a return of contribution or part thereof received by such limited partner in circumstances where the limited partnership is insolvent, any such payment is liable to be repaid by the limited partner to the extent that such contribution or part thereof is necessary to discharge a debt or obligation of the limited partnership incurred during the time that the contribution represented an asset of the limited partnership. Other than this, or if he receives any payment as a result of any fraud, a limited partner is not liable to repay any payment representing a return of his contribution or part thereof.

Subject to the above, a limited partner can demand payment representing the return of all or part of his contribution:

1. on the dissolution of the limited partnership;
   
   
2. at the time specified in the partnership agreement for its return; or
   
   
3. after he has given six months' notice in writing to all other partners, if no time is specified in the partnership agreement either for the return of the contribution or for the dissolution of the limited partnership.
   
   

A limited partner has, notwithstanding the nature of his contribution, only the right to demand and receive money in return for it, unless:

1. there is a statement to the contrary in the partnership agreement; or
   
   
2. all the partners consent to some other manner of returning the contribution.
   
   

"Payment" includes the release of any obligation forming part of the capital contribution, and any liability to make repayments is construed accordingly.

Limited partners – dealing with the partnership and inter se

Limited partners can lend money to, borrow money from and enter into transactions with the limited partnership, and will rank as a creditor of the limited partnership. However, if the limited partner is also a general partner, the limited partner will have no claim against the assets of the limited partnership.

Generally, limited partners, in relation to one another, rank:

1. pari passu in respect of the return of their contributions; and
   
   
2. pro rata to those contributions in respect of profits.
   
   

However, where there is more than one limited partner, the partnership agreement may provide that one or more of the limited partners has greater rights than the other limited partners to:

1. the return of contributions;
   
   
2. profits; or
   
   
3. any other matter.
   
   

Limited partners – liabilities

A limited partner is only liable to the limited partnership for the total amount of his agreed capital contribution – i.e. the difference between the amount actually contributed by the limited partner and the amount specified in the limited partnership's records as due to be contributed by him by way of capital contribution.

A limited partner is not usually liable for the debts or obligations of the limited partnership, and is not liable as a general partner unless he participates in the management of the limited partnership.

If a limited partner participates in the management of the limited partnership in its dealings with third parties, that limited partner may in the event of the insolvency of the limited partnership be liable for all debts and obligations of the limited partnership incurred during the period that he participated in the management of the limited partnership as if he were for that period a general partner.

Liability will, however, generally only arise where the third party has actual knowledge of the participation of the limited partner in the management of the limited partnership and reasonably believes the limited partner to be a general partner.

A limited partner does not participate in management by:

1. being a contractor for or an agent or employee of the limited partnership or of a general partner or acting as a director, officer or shareholder of a corporate general partner; or
   
   
2. consulting with and advising a general partner with respect to the activities of the limited partnership; or
   
   
3. investigating, reviewing, approving or being advised as to the accounts or affairs of the limited partnership or exercising any right conferred by the LP Law; or
   
   
4. acting as surety or guarantor for the limited partnership either generally or in respect of specific obligations; or
   
   
5. approving or disapproving an amendment to the partnership agreement; or
   
   
6. voting on, or otherwise signifying approval or disapproval of:
   
   

This list is not exclusive, and does not mean that the possession or exercise of any other power by a limited partner necessarily constitutes participation in the management of the limited partnership.

Adding new limited partners

New limited partners can only be admitted to a limited partnership in accordance with the partnership agreement or by making an entry in the register of limited partners.

A limited partner cannot not assign his interest unless:

1. all the limited partners and all the general partners consent and the assignment is made in accordance with the terms of the consent; or
   
   
2. the partnership agreement permits it and the assignment is made in accordance with the partnership agreement.
   
   

An assignee of a limited partnership interest does not become a limited partner until his ownership of the assigned interest is entered in the register of limited partners, and until so entered he has no rights as a limited partner.

On becoming a limited partner, an assignee acquires the rights and powers and is subject to all the restrictions and liabilities that his assignor had in respect of the assigned interest immediately before the assignment, but does not assume any liability of the assignor (who cannot be relieved of his antecedent liability).

DISSOLUTION

Where a limited partnership is to be dissolved, its affairs are usually wound up by the general partners.

A limited partnership is not dissolved until a statement of dissolution signed by a general partner has been delivered to the Registrar of Limited Partnerships, who cancels the registration of the declaration of limited partnership upon receipt of the a statement of dissolution.

The death, legal incapacity, bankruptcy or retirement (in the case of an individual) or the dissolution or bankruptcy (in the case of a body corporate) or withdrawal from the limited partnership by the sole or last remaining general partner results in the immediate dissolution of the limited partnership which is wound up immediately:

1. in accordance with the partnership agreement, or
   
   
2. on the application of a limited partner or a creditor of the limited partnership, in accordance with the directions of the Royal Court.
   
   

However, if within 90 days of the dissolution, the limited partners, either unanimously or as otherwise provided for in the partnership agreement, select another general partner, the limited partnership shall be deemed not to have been dissolved and the activities of the limited partnership may be taken over and continued as provided for in the partnership agreement.

If a limited partnership is dissolved, and the activities of the limited partnership are not taken over and continued (as per the above), a statement of dissolution signed by a limited partner must be delivered to the Registrar of Limited Partnerships who then cancels the registration of the declaration of limited partnership.

Any partner may apply to the Royal Court for an order that a limited partnership be dissolved, which the Royal Court will agree to, and may give such directions as it thinks fit as to the dissolution, if it is satisfied that:

1. the limited partnership is being conducted in a manner calculated or likely to affect prejudicially the carrying out of the activities of the limited partnership;
   
   
2. the limited partnership is being conducted in a manner oppressive to one or more of the limited partners; or
   
   
3. circumstances have arisen which render it just and equitable that the limited partnership be dissolved.
   
   

When the Royal Court does order the dissolution of a limited partnership, the partner making the application must deliver the Act of Court to the Registrar of Limited Partnerships within 21 days of the date of the order, whereupon the Registrar of Limited Partnerships shall cancel the registration of the declaration of limited partnership.

PAYMENT PREFERENCES

Where accounts are settled after the dissolution of a limited partnership, the liabilities of the partnership to creditors (except for limited partners on account of their contributions or profits, and general partners) are be paid first, and then, subject to the partnership or other agreement, the other liabilities of the partnership are paid in the following order:

1. to general partners other than for capital and profits;
   
   
2. to limited partners in respect of the capital of their contributions;
   
   
3. to limited partners in respect of their share of the profits on their contributions;
   
   
4. to general partners in respect of capital;
   
   
5. to general partners in respect of profits.
   
   

TAX TREATMENT

In most cases, the principal attraction is the limited partnership's tax transparency, which means that profits and losses of the limited partnership are attributed to the partners themselves, who are then taxed according to their proportionate share of the profits and losses.

This gives two distinct advantages:

1. the partner can set off his share of any profit or loss against profits or losses from other investments – which it would not be able to do with an investment company; and
   
   
2. the partner's share of profits and losses of the limited partnership are treated 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 that of the investment.
   
   

The limited partnership is not itself subject to assessment for income tax in Jersey and a non-resident partner is not be liable to Jersey income tax except on Jersey source income (excluding bank deposit interest). Management fees or profit share received by a general partner will generally also not be treated as Jersey source income. Hence, provided a limited partnership has no Jersey resident partners (a general partner with exempt status is treated as non-resident for these purposes) and no Jersey source income, no tax return is required to be submitted.

Where the general partner of a limited partnership is a Jersey incorporated company, the preferred tax status for the general partner is likely to be exempt company status. This enables a general partner to pay interest on loans to the partnership, made either by the limited partners or third parties, without being liable to make a deduction in respect of withholding tax. A fully tax resident general partner will not have this benefit and may have to make an appropriate withholding.

Jersey James Gaudin, Partner Cayman Islands Ian Ashman, Partner London David Whittome, Partner

British Virgin Islands Heidi de Vries, Partner Hong Kong Carol Hall, Partner Dubai Rod Palmer, Partner

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.