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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
CHAPTER 37
INTRODUCTION TO FORMS OF BUSINESS AND FORMATION
OF PARTNERSHIPS
I. OBJECTIVES
This chapter serves the function of introducing a student to the forms of business
organization and the creation of partnerships and limited liability partnerships (LLPs).
Students should master at least the following subjects covered by this chapter:
A. The differences between the various forms of business.
B. The advantages and disadvantages of the various forms of business.
C. When a partnership is created.
D. When a person becomes a purported partner of another person.
E. The distinction between partnership property and partner's property.
F. The effects created by a transfer of a partner's transferable interest and an issuance of
a charging order against a partner's transferable interest.
II. ANSWER TO INTRODUCTORY PROBLEM
A. Although virtually any business form may be adapted to the needs of this new
business, the forms that are the best fits are the LLC and LLLP. Both forms will
allow the owners to deduct the business’s losses in its first two years on their
individual federal income tax returns if partnership tax status is elected. Each form
will also easily allow you to assume all management of the business.
B. If an LLC is chosen, you will want to designate that the LLC is member-managed
with you as the manager. It is important that the operating agreement state that you
may not be removed except with your consent. While the limited partnership will
also work, the LLLP is better, because it grants limited liability to the general partner
(you), if that form is chosen. As the only general manager in an LLLP, you will
control the business. An LLP could also be used, with all partners agreeing that you
are the only managing partner. An S Corporation could also work if the number of
shareholders is limited to 100 and you are elected as the sole director of the
corporation each year. To elect yourself as the only director, you will need to
maintain majority ownership of the shares or create different classes of shares, with
only your shares being able to elect the directors. This is beyond the scope of this
chapter. See Chapters 43 and 44 regarding how to adapt the corporation to your
needs. While the Internal Revenue Code requires an S Corporation to have only one
class of shares, IRS regulations indicate that a difference in voting rights by itself
does not create two classes of shares for Subchapter S purposes.
III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Choosing a Form of Business
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
1. Begin your lecture by listing the eight business forms summarized in Figure 1
(page 995) briefly distinguishing them, and explaining that choosing a business
form is important for many reasons, especially liability and tax reasons.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
Note the three most recently created business forms: the limited liability company,
the limited liability partnership, and the limited liability limited partnership. Note
that the LLP was created in reaction to the enormous amount of liability imposed
on professionals due to the savings and loan associations debacle of the early
1990s. The Revised Uniform Partnership Acts gives limited liability for all
obligations to a partner of an LLP, except for wrongful acts committed by the
partner.
2. It may be instructive to reproduce Figure 1 on the chalkboard or overhead screen.
Start by listing the forms of business across the top of the chalkboard and listing
the characteristics as students answer your questions. Elaborate on students
answers to clear up any ambiguities.
3. Students may struggle with the confusingly similar names and acronyms for the
various business forms. You can eliminate this confusion by organizing the forms
by type and by pronouncing the names of the forms in a way that reinforces what
they are. For example, the partnership and LLP are essentially the same form.
The LLP is a limited liability [pause] partnership, that is, a partnership for which
the partners have chosen limited liability.
The limited partnership and the LLLP are essentially the same form. The LLLP is
a limited liability [pause] limited partnership, that is, a limited partnership whose
partners have chosen limited liability for the general partner.
Some students will want to conclude that an LLP has limited partners. Correct
that misimpression by stating that only the limited partnership and LLLP have
two classes of partners by default. The default rule in a partnership or LLP is that
there is only one class of partners. If partners in a partnership or LLP do create
more than one class of partners, they will not use the terms limited partners and
general partner. Partners who manage the business will be called managing
partners, and non-managing partners will be called partners.
4. Log On (p. 994): This website has a practical guide to starting a business,
including getting the necessary tax forms.
5. Example: Problem Cases ## 1, 2, and 3.
6. Additional Example: Chapter Introductory Problem (p. 990)
7. The Global Business Environment (p. 994): Note that while the names may be
different, business forms are generally similar worldwide. The United States has
taken the lead in recent years in creating new business forms, and it is expectable
that other nations will follow suit and create similar forms, like the LLLP and
LLP.
8. Ethics in Action (p. 996):
a. You can examine the first question from each of the ethical perspectives
presented in Chapter 4. Here are some suggestions. A profit maximizer
would find it ethical to comply with the law and to select limited liability
status when the law permits, unless creditors were unwilling to transact with a
business whose owners have no personal liability. For example, a bank may
be willing to lend money to an LLP only if the partners agree to be personally
liable on the loan agreement. A profit maximizer would find it necessary to
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
accept that liability when the loan is expected to contribute to the LLP’s
profitability.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
A utilitarian would consider the impact of limited liability on society as a
whole, finding that society benefits when business people protected by limited
liability engage in a valuable business that they otherwise would not
undertake, but also finding that limited liability may encourage unduly risky
business ventures that harm society when they fail. Another cost is that
creditors who are not paid by failed a business may leave the credit field or
increase the cost of credit for all businesses having owners with limited
liability.
A rights theorist, especially someone who believes in Kant’s categorical
imperative, would consider the effect of a rule that allows a business person to
escape liability for the contracts and other liabilities of his business. He might
conclude that taking advantage of limited liability will cause credit to dry up
for all businesses including his own, and therefore accepting limited liability
is not a rule that he would impose on others. However, he might conclude that
knowledgeable creditors will protect themselves by insisting that business
owners agree to assume personal liability before the creditors extend credit to
the business.
A believer in justice theory will respond to that last argument by agreeing that
contract creditors have the ability to make contracts with the owners to protect
the contract creditors. Yet tort creditors (that is, victims of torts) often do not
have the ability to contract with a business or its owners prior to the
commission of a tort. Tort creditors are, therefore, disadvantaged and deserve
to be compensated by someone for the harm they have suffered. That is one
of the reasons, by the way, why individuals who commit torts have personal
liability for torts they commit, despite otherwise having limited liability.
b. An analysis of the ethics of tax treatment is similar to the analysis of the ethics
of limited liability. See Chapter 4 for additional guidance.
B. Introduction to Partnership
1. History of Partnerships. We tend to allow students to cover this in their reading,
except to point out that the partnership is not some recent creation, but has existed
for thousands of years.
2. The RUPA is the dominant partnership law in the United States. Note the number
of states that have adopted the RUPA and whether your state has adopted the
RUPA by going online at www.nccusl.org.
3. Characteristics of Partnerships. When beginning your lecture on partnerships,
write on the chalkboard the most important characteristics of partnerships under
the RUPA, especially that a partnership can be created with no formalities, its
partners are managers, partners are fiduciaries, partners have unlimited liability,
and partners share profits and losses. You may wish to refer merely to Figure 2 on
page 997.
C. Creation of Partnership
1. Consequence of Being a Partner.
a. Begin with a summary of the consequences of being held to be another's
partner and give several examples. The consequences are listed in Figure 3 on
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
page 999. There is significant shock value to the students here, as they learn
of the severe consequences of having to share profits with someone, or being
held liable for another's contracts or torts. This impresses them with the
relevancy of knowing when a partnership is created.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
b. Example: Two students agree to buy basketball tickets, to resell them
(scalping), and to share the profits. They may not intend to create a
partnership, but they have. As a result, if one of the students has a bad night
and loses money on his sales, the other student must assume a share of the
loss. In addition, neither student should be selling tickets for his personal
profit when he has partnership tickets to sell, or else he breaches the fiduciary
duty of competing with the partnership. They also share the power to decide
what tickets to buy.
2. Definition of Partnership.
a. List the four elements on the chalkboard and explain them briefly before
covering each in detail.
b. Association of Two or More Persons
Note that no person may be forced to be a partner of another person.
c. Co-ownership
1) Students have the most problems with the co-ownership element. Stress
that sharing profits is prima facie proof of a partnership, because usually
only owners of a business share profits. Point out that sharing profits is
the most important factor establishing a partnership, and that sharing
management is the second most important. Together, the two almost
always ensure that a partnership results.
a) Example: Problem Cases ## 4, 6, 7, and 8.
b) Additional Example: Two business consultants share the revenues of a
business and the expenses of the business. Are they partners? Yes.
Since revenues minus expenses are profits, the consultants are sharing
profits and, therefore, presumed to be partners. This is similar to
Problem Case # 5.
2) The RUPA exceptions to the rule that sharing profits presumptively proves
partnership create problems for students, especially with regard to
creditors who exercise management powers. Stress that the exceptions
exist to allow people to share profits not because they co-own a business,
but because it is convenient for an obligation, such as wages, rent, or other
debt, to be paid out of profits.
Example: Joe loans $50,000 to Karen's business. Joe has the right to
approve any additional borrowing by Karen and to veto her decision to
expand her business. Joe has the right to receive, as interest on the loan,
the greater of $5,000 per year or 25% of Karen's profits. Karen must
repay the principal amount of the loan in 10 years. Joe is not a partner,
because the loan has a maturity date, principal amount, and interest
obligation. If the loan had no repayment date, the loan would be similar to
a capital contribution, because repayment would appear to be subject to
the risk of the success of the business. His status would be more nearly
that of a partner than of a creditor, and he will be held to be a partner.
Stress here the importance of a creditor documenting his creditor status by
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
having a written promissory note with a principal amount, interest rate,
and maturity date.
Additional Example: Problem Cases # 5. Sharing profits as compensation
to an employee creates no presumption of partnership.
3. Intent of the Parties
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
Students are surprised to learn that they can be partners even if they tell each
other that they are not partners. Stress that it is their intent as evidenced by their
relationship with others--not their stated intent--that determines whether a
partnership has been created. That is, actions speak louder than words.
Rasmussen v. Jackson (p. 999): The Iowa court of appeals held that Rasmussen
and Jackson were not partners because there was no co-ownership of the business.
Points for Discussion: Ask the students to list the three rules that the court used to
show there was no partnership. First, there was no joint ownership of property
used in the business. Second, the two parties did not agree to share gross receipts
from the business. Third, the two partners did not share profits.
Be careful to point out that the first two reasons, even if the facts proved the
opposite, would not presumptively create a partnership. The rationale behind the
third reason, sharing profits, is the most important basis for finding a partnership.
Note also that the court did not consider two other very important factors, the
sharing of control and making contributions to the business. Magee and
Rasmussen shared some control over the maintenance of the herd: Magee helped
maintain the herd and the land, and Rasmussen maintained the land. Each also
contributed some property: Magee contributed bison and equipment and
Rasmussen contributed land.
Why was the court not convinced that the two parties jointly owned the property
of the business? Rasmussen owned the land where Jackson grazed the bison, and
Rasmussen never had title to any of the bison. Moreover, new equipment that
maintained the bison was titled only in Rasmussen’s name. You may want to
point out here--and the court acknowledged--that joint ownership of property is
not sufficient to a finding of partnership. It is also not necessary, provided the
parties co-own the business. Its absence is some weight, however, tending to
prove a lack of partnership.
Note that while the agreement with the previous land owner, Magee, provided for
the sharing of the proceeds (revenue) from the sale of the bison and the expenses
of maintaining the herd, Rasmussen stated he did not want such a relationship.
Had he agreed to that relationship, he would have been agreeing to share profits,
as revenue minus expenses is profits. That would have been strong proof of
partnership.
The court probably was greatly persuaded by a clause in Rasmussen and
Jackson’s agreement that there is no partnership between them. Such statements
are not always followed by a court when objective evidence shows intent to form
a partnership. Yet when the evidence of partnership is scant, as here, such a
statement helps a court reach a conclusion that there is no partnership.
D. Purported Partners
1. Essence. This concept is nearly the same as the old UPA's concept of partnership
by estoppel. Stress that since purported partner status is an estoppel concept, it is
based upon reasonable reliance. It is reasonable for me to rely upon your
representations that you are a partner of another person. If I transact with another
person because you have misled me, you will be liable on contracts and torts
arising from that transaction.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
2. Consequences. Students have trouble distinguishing the consequences of being
an actual partner from the consequences of being a purported partner. They seem
to confuse purported partnership with creation of partnership. Start your lecture
by listing the consequences and non-consequences of being a purported partner.
The purported partner does not co-own a business, does not share profits or
management, does not owe fiduciary duties, and does not have unlimited liability.
He is liable only on contracts that a person entered in reliance upon the
appearance of partnership and torts that arose in the course of the performance of
those contracts.
3. Purporting to be a Partner. Use a demonstration to define purporting to be a
partner. Hold out your hand and say that by calling someone your partner you are
figuratively purporting or representing this person to be your partner or making it
appear this person is your partner by holding this person on your hand and saying,
"Look. This person is my partner. I am holding him out to you as my partner. I
am representing that he is my partner. I am purporting that we are partners. I am
making it appear that this person is my partner."
4. Consent to Being Represented as a Partner. Note that a person is not liable for
someone else representing or holding her out as a partner unless she consents--by
her words or her actions--to the holding out.
Example: Helen retires from her partnership, but frequently visits the office to
pass the time. Her former partners introduce her to customers as "my partner,
Helen." If Helen does not deny that she is a partner, she may be found to be a
partner by estoppel. Her silence is consent to her being held out as a partner.
5. Reliance Resulting in a Transaction with the Partnership. Most courts have little
difficulty finding that a person has relied on the appearance of partnership. Often
it is inferred merely from the person having knowledge of the representation of
partnership and transacting with a purported partner.
Example: Problem Cases ## 8 and 9.
McGregor v. Crumley (p. 1002). The court concluded that Clint and Paige were
neither partners in fact nor purported partners. Therefore, Paige was not liable on
the contract to purchase cattle.
Points for Discussion: For what reasons did the court conclude that Paige was not
Clint’s partner? McGregor presented no evidence that Paige shared in the title to
the farm they operated, that she shared any gross returns of the business, that she
shared its profits, and even that she was compensated at all. The court especially
criticized McGregor for presuming that a husband and wife in business together
were partners.
Additional Point for Discussion: For what reasons did the court refuse to find that
Paige was Clint’s purported partner? Again, McGregor presented no evidence
that Paige caused him to believe that she was Clint’s partner. Paige’s giving
McGregor a check of the business is not a holding out that she is a partner,
because an employee can do that very act. Moreover, her refusal to discuss the
bill for the second shipment of cattle is good evidence she is not a partner, who
ordinarily would hold and exercise authority to discuss bills.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
6. Ethics in Action (p. 1004): The doctrine of purported partnership can be justified
by Kant’s categorical imperative because it reflects a rule that that you would
want others to live by. It recognizes that people should be allowed to rely on
representations. If there was no rule of purported partnership, people may decide
not to do business with those who claim to be partners for fear that those persons
are not partners and not liable for each other’s actions.
E. Partnership Property and Partners' Property Rights
1. Distinguishing Partnership Property from Partners' Property.
a. Students have the greatest difficulty in sifting through the conflicting evidence
of ownership. List the common indicia of ownership in the order of their
importance:
1) what is the partners' intent;
2) who paid for the property;
3) whether title was taken in the name of the partnership;
4) whether title was transferred to a partner acting as a partner;
5) who pays taxes;
6) who pays insurance premiums; and
7) who maintains and repairs the property.
Go through these indicia individually and explain that partners' intent is
conclusive, that purchasing the property with partnership funds is
presumptive, that holding title is presumptive, and that the other factors can
overcome the presumptions of ownership.
b. Stress the importance of making a distinction between partnership property
and partners' property. The examples on page 1004 in the text may be used
and expanded. Not only is taxation an issue, but also when property is
partnership property all partners share in the value of the property. If property
is a partner's property, that partner gets all the value of the property.
McCormack v. Brevig (p. 1005). The court concluded that the cattle remained
partner’s property, that is, Clark’s property, despite evidence that Clark knew
that the cattle was listed on partnership tax returns and that proceeds from the
sale of the cattle’s offspring was placed in partnership accounts.
Points for Discussion: Ask your students which RUPA section led the court to
presume that the cattle belonged to Clark? The court applied RUPA section
204(d), which essentially states that property acquired by a partner with the
partner’s funds in the name of the partner with no indication that the partners
is acting on behalf of the partnership is the partner’s property. That is
completely sensible, and it comports with the facts, which indicate that Clark
and Joan’s mother transferred rights to the cattle to Clark and his sons, not to
Joan or the partnership.
Additional Points for Discussion: Why, then, did Joan contest ownership of
the cattle? Because she believed there was evidence of the partners’
agreement that the cattle would be partnership property. What evidence did
Joan cite? She cited that Clark consented to the cattle being listed on
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
partnership tax returns and having proceeds of the sale of their offspring
placed in partnership accounts. Why didn’t the court accept Joan’s
arguments? The court seemed not to think those facts were evidence of the
partners’ agreement, focusing instead only the inability of the partnership to
claim ownership merely because it fed, watered, and pastured them.
Ask whether your students think the court was being evasive. We know that
listing an asset on the partnership books is evidence of the asset belonging to
the partnership. Why shouldn’t that be the case with assets listed on
partnership tax return? Why would an owner of cattle allow their calves to be
sold and then place the proceeds in the partnership account? Aren’t those two
facts strong evidence of partnership property?
Final Point for Discussion: This is a good case to point out what well
planned partnerships should do. The partners should make it clear who owns
the property in written partnership agreements, and should not act, as Clark as
here, in a way inconsistent with that agreement.
Additional Examples: Problem Cases ## 10 and 11.
Additional Example: Frank, Susan, and Ryan create a partnership. Frank and
Susan each contribute $50,000 in cash. Ryan makes no cash contribution, but
he lets the partnership use his land and building, which are worth $50,000.
Ryan retains title to the land and building. The partnership pays no rent to
Ryan. Ryan insures the land and building, but the partnership pays for all
upkeep and repairs. This is probably Ryan's property, because he has title and
pays for insurance. Should the land and building be considered Ryan's capital
contribution merely because he has otherwise made no contribution? No.
Ryan's contribution could be the partnership's free use of the land and
building. Besides, partners may agree that one partner need make no
contribution. Stress to students that the partners should have stated expressly
in writing who owns this property to avoid disputes.
2. Partners' Rights in Partnership Property.
Note that the RUPA gives partners no ownership rights in partnership property.
Partners merely have the right to use partnership property for partnership
purposes.
3. Partner's Transferable Interest. Students have little trouble understanding that a
partner's transferable interest is her personal property, like her car or television
set. They also have little difficulty understanding that a transferee or a creditor
with a charging order does not obtain all the rights that a partner had. However,
students have difficulty distinguishing transfers from charging orders. List the
elements and consequences of transfers and charging orders.
a. Transfer of a Partner's Transferable Interest
1) Voluntary by partner.
2) Transferee receives only the transferring partner's share of partnership
distributions, such as a share of the profits distributed to partners.
3) Transferee is not a partner and has no right to manage the partnership or
inspect its books and records.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
4) Transferring partner remains a partner with all the rights he had before the
transfer, except the right to receive partnership distributions that he has
transferred.
5) Transferee may seek a judicial dissolution and winding up of a
partnership-at-will.
6) Nontransferring partners may agree unanimously to expel the transferring
partner from the partnership. This is a nonwrongful dissociation of the
expelled partner.
b. Charging Order against Transferable Interest
1) Involuntary. Partner is powerless to stop a court from issuing a valid
charging order to partner's creditor.
2) Creditor receives only the charged partner's share of partnership
distributions, such as a share of the profits distributed to partners.
3) Creditor is not a partner and has no right to manage the partnership or
inspect its books and records.
4) Partner who suffers a charging order remains a partner with all the rights
he had before the charging order was issued, except the right to receive
partnership distributions.
5) Creditor with a charging order may foreclose on the charging order and
obtain sale of a partner's transferable interest. The purchaser of the
transferable interest at a foreclosure sale is treated as a transferee of the
transferable interest and may seek dissolution and winding up of a
partnership-at-will.
6) Partners who have not suffered charging orders may agree unanimously to
expel the partner who suffered the charging order. The expulsion is a
nonwrongful dissociation.
7) Partners who have not suffered charging orders may agree to redeem the
charging order.
c. Explain that a transferee obtains greater rights than a creditor with a charging
order, because a transfer is voluntary: a transferring partner can protect
himself by refusing to assign his interest. Only by seeking foreclosure will a
creditor with a charging order be able to obtain the same rights as a transferee.
Example: Problem Case #12.
Additional Examples:
1) Betty transfers her transferable interest to Henry. Henry tells Betty's
partners that he is now their partner and that he wants to inspect the
partnership's books and records. Must Betty's partners allow this? No.
Henry will be allowed to receive Betty's distributions, but he is not a
partner and cannot inspect the books.
2) Betty's partners refuse to allow her to participate in the management of the
partnership after her transfer. This is wrongful, unless Betty's partners
have voted unanimously to expel her as a partner.
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Chapter 37 - Introduction to Forms of Business and Formation of Partnerships
IV. RECOMMENDED REFERENCES:
A. Gregory, Hornbook on the Law of Agency and Partnership (3rd ed. 2001).
B. Henn, Agency-Partnership and Other Unincorporated Business Enterprises (1972).
Liberally supplied with actual case excerpts and additional examples.
C. Hynes & Loewenstein, Agency, Partnership, and the LLC in a Nutshell (4th ed. 2008).
D. Jamison, Kulsrud, Curry, & Stephenson, 2015 Multistate Tax Guide to Pass-Through
Entities (2015). A new edition is published every year.
E. Kleinberger, Examples & Explanations: Agency, Partnerships, and LLCs (4th ed.
2011).
F. Rothenberg & Melnikova, Comparative Forms of Doing Business in Russia and New
York State—Proprietorships, Partnerships, and Limited Partnerships, 40 AM. BUS. L
J. 563 (2003).
G. Shade, Business Organizations in a Nutshell (3rd ed. 2009).
H. Sullivan & Callison, Partnership Law and Practice: General and Limited
Partnerships (2014-2015). A regularly updated treatise.
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