General Partnerships

A partnership is formed when two or more persons agree to carry on a business together. This agreement can be written or oral. A general partnership is formed when two or more people intend to work together to carry on a business activity. No local or state filings (other than appropriate tax returns) are required to create this type of partnership. This is different than a corporation, which does not come into existence until Articles of Incorporation have been filed with the Secretary of State.

The distinguishing feature of a partnership is the unlimited liability of the partners. Each partner is personally liable for all of the debts of the partnership. That includes any debts incurred by any of the other partners on behalf of the partnership. Any one partner is able to bind the partnership by entering into a contract on behalf of the partnership. If Jackson and Wilson are partners, and Wilson signs a contract on behalf of the partnership, Jackson will be personally liable for the full amount. This is true regardless of whether Jackson authorized the contract or whether he even knew of its existence. This feature of unlimited liability contrasts with the limited liability of the owners of a corporation. As discussed previously, when a contract is entered into on behalf of a corporation, the owners are not personally liable for its performance.

Because each of the partners has unlimited personal liability, a general partnership is the single most dangerous form for conducting one’s business. Not only is a partner liable for contracts entered into by other partners, each partner is also liable for the other partner’s negligence. When two or more physicians or other professionals practice together as a partnership, each partner is liable for the negligence or malpractice of any other partner.

In addition, each partner is personally liable for the entire amount of any partnership obligation. For example, Dr. Smith may be one of ten partners in a medical partnership, but he is not responsible for only 10 percent of partnership obligations. He is responsible for 100 percent-even though he owns only a 10 percent interest. If Dr. Smith’s other partners are unable to pay their respective shares, he must pay the entire amount.

General Partnership versus LLC

Because of the joint and several liabilities of general partners, the level of business risk is increased dramatically by this form of business organization. Since most of these risks are effectively eliminated with an LLC, the general partnership seems to be a legal relic. It is now used primarily in situations where use of an LLC to conduct business (by physicians and other professionals) is not permitted by state law. If a general partnership cannot be converted into a limited liability entity (LLC, corporation or limited partnership) because of state law or obstinate partners,  an individual partner might be able to transfer his partnership interest ito an LLC and have the LLC substituted in as a replacement general partner. If permitted and agreed to by the other partners, that strategy may insulate the individual from partnership liabilities.

For more on choosing the proper business entity

As with any high risk business, individual partners should explore whether asset protection planning to protect personal assets from business liabilities would be a sensible strategy to mitigate the risks.

Piercing the LLC Veil by Robert J. Mintz

Many physicians use Limited Liability Companies to hold investment assets such as equipment and real estate or to operate a business outside of their practice. LLC’s are generally easier to form than corporations, have fewer formal operating requirements and offer a greater variety of tax planning options.  Read full article

Key Issues in Physicians Partnerships by Robert J. Mintz   

If you have partners in your medical practice it’s a good idea to decide now, how the value of the practice will be divided if a partner leaves for any reason.  There are a host of circumstances which can disrupt a partnership, including death, retirement, business disputes, disability and divorce. And each event can have a powerful financial impact on the business of the partnership. How should the business be split up or paid out in these situations? Similar issues arise outside of your medical practice for business ventures or real estate investments with any co-owners. Planning in advance, with a written and detailed Buy-Sell Agreement which addresses each possible scenario, can help avoid costly litigation and financial loss in the future.

Events Triggering Buy-Out

The first issue to consider is what events should be covered by the terms of the Buy-Sell Agreement.   Under what circumstances should a partner, have the right to be bought out?  Certainly, death and long-term disability would be included, as well as planned retirement. Equity in the practice may be a big part of your savings nest egg and you, or your family, are likely to need it under these circumstances.  Read full article


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