NakedPuts2011

Vinceroy,

it's not as easy as it sounds. Yes, setting up a GmbH & Co KG is not that difficult. Grasping the implications for your and every Limited Partner's tax return is a much different issue. GmbH & Co KG are mostly used for tax purposes, that's about the whole reason for their existence.

Also, there are things like officer's liability and liability for under-capitalization, apart from all the BaFin requirements.

Please do talk - at least shortly - to a lawyer about your preferred structure and the purposes you want to accomplish with it. Otherwise it might very well work out for you, it might just as well go very wrong and you're on the hook personally.

I'm a German lawyer-in-training (Rechtsreferendar), so of course I err on the side of caution on these matters, so take it for what it's worth. But there's a reason there are lawyers doing nothing else than setting up new investment funds all day - and they are primarily tax law specialists. The company law part is not the difficult one.

Cheers



Edited 1 time(s). Last edit at Monday, April 18, 2011 at 02:18AM by dsp.

Chuckrox

^^^

dsp, thanks alot for input!!!!

I am currently so far away from starting the thing that talking to a lawyer isn't a concern.
I am just really brainstorming a bit and trying to sketch what it would look like, what issues exist, what is possible and not.

Of course I would get legal & tax advice before I do anything concrete.

So,
I am not sure about this, but I think that the whole Prospectus authorisation thing and Prospectus liability applies for KGs with more than 20 LPs, so that for small structures it is even simplified. By the way, do you know if the Prospectus liability has to apply to the *person* filing the prospectus, or if it applies to the limited liability (GmbH General partner) company if it files the prospectus as a manager ?

I also heard that unless there is a clause limiting the powers of the LPs, that they can potentially take some control on the KG's management if they put their votes together. So this is something to watch out for in the KG's statutes.

Something that I am worried about is the LP's Nachschusspflicht (is this what you meant with liability for under-capitalization?). This is a risk that equity investors have to bear in project finance, and hence my initial idea to have a business model based on investing in subordinated debt. In any case that would be a total deal breaker, as it wouldn't be acceptable for LPs to have a risk which isn't limited to their investment. But my feeling is that this has more to do with the structure of the deals I would be investing in.



Edited 1 time(s). Last edit at Monday, April 18, 2011 at 04:43PM by Viceroy.

former

Viceroy -

It's by far easier to first think about what you actually want to accomplish on the business side (where to invest - geographically as well as in which market, in which structure, equity or debt etc.) before thinking about the legalese. Legal structures serve business purposes, not the other way round, so do make up your mind in the right order.

In general, you would be wise to choose a legal entity from an established jurisdiction with well-known case law and statues. No use in using a LLC from Turkmenistan just to save a few bucks when you can become personally liable due to some obscure Turkmenistan law for the delivery of 100 goats to their president.

Choose your jurisdiction wisely. The specific legal entity can always be modified to fit your purposes and your personal tax planning.

Cheers from Germany