The Law of Limited Liability Partnerships

Description

The Law of Limited Liability Partnerships, Fifth Edition is an indispensable book for all those who advise on the legal and taxation aspects of incorporating and running an LLP. It combines concise description, practical guidance and penetrating analysis of problem areas. It also offers an international perspective through a comparative analysis of the UK LLP structure and those being enacted overseas in Canada, Dubai, India, Japan, Qatar, Singapore, the USA and other jurisdictions. Comprehensively setting out the law of LLPs in England and Wales, the Fifth Edition includes coverage and analysis of: Specialist contributors have written chapters on: Financial Services Regulation and LLPs; Taxation of LLPs; Members and Discrimination; and Whistleblower Protection. Preface Contents Table of Cases Table of Statutes Table of Statutory Instruments Table of United Kingdom Materials Table of International Materials Chapter 1. Overview and Introductory Matters The business entity Disclosure and regulation The Registrar ‘LLP Search’ Scheme of the legislation Transitional provisions and continuity of the law Partnership law Punishment of offences The United Kingdom Financial services Groups and subsidiaries Chapter 2. Incorporation The requirements Certificate and registration Inspection Trading not commenced Chapter 3. The Corporate Entity Separate legal personality Piercing the corporate veil ‘Unlimited capacity’ Banks and landlords Effect of failure to notify the registrar The registered office LLP ceasing to satisfy section 2(1)(a) Chapter 4. Formalities and Requirements after Incorporation Requirements as to display and disclosure Formalities for contracts, deeds and other documents Change of name Duty to notify changes Confirmation statement Chapter 5. The LLP and the Outside World Agency Members and other agents acting within their authority Members and other agents acting outside their authority Cessation of membership Vicarious liability for torts and other wrongs Chapter 6. Charges and Debentures Introduction Registration of charges The LLP’s registers and copies Debentures Chapter 7. Conversion from a Partnership Introduction The decision to convert Stamp duty and stamp duty land tax Transfer of the partnership business and assets Customer/client contracts Employees Leases Banking Investments Professional indemnity insurance Indemnities Annuities ‘True and fair’ accounts Partnerships of accountants Chapter 8. Membership: General Matters Introduction First members New members Changes in a member’s name or address Notice in the london gazette Protection of residential addresses from disclosure Limited liability A member’s share and interests Alienation of a share or interest Fiduciaries as members Leaving members Shadow members De facto members People with significant control Chapter 9. Employment and Worker Status Introduction Employment – the partnership law position Employment – the effect of section 4(4) Worker status TUPE Chapter 10. The LLP Agreement: General Principles LLP act 2000, section 5(1) The position in default Execute before incorporation? Rectification Amendment Rescission and termination Rescission for misrepresentation Non-disclosure Repudiation Remedies for breach Governed by foreign law? Chapter 11. The LLP Agreement: Contents Introduction Points for consideration Chapter 12. Designated Members Introduction Appointment and retirement of designated members Duties, responsibilities and powers of the designated members Designated members and the LLP CDDA 1986 Chapter 13. Duties and Responsibilities of Members Introduction A member’s duties to the LLP Statutory duties and responsibilities A member’s duties to his co-members Express and implied contractual terms of good faith or mutual trust and confidence Duties in decision-making Chapter 14. Rights, Indemnities and Protection of Members Introduction Default rule rights Rights given by CA 2006 to every member Rights given by IA 1986 to Contributories Decision-making as to individual membership rights Excluding a member’s liability to the LLP (and to other members) Discretionary power of court to relieve members from liability Claims by a member against the LLP Derivative claim by a minority of members Chapter 15. Discrimination and Whistleblower Protection Introduction Discrimination protection Prohibited discriminatory conduct Potentially permissible discriminatory treatment Territorial scope of discrimination law Time limits for discrimination claims Mandatory early conciliation in discrimination claims Burden of proof in discrimination claims Remedies Employment tribunal jurisdiction and arbitration provisions Common discrimination issues relating to LLP members Disability discrimination Whistleblower and other ‘worker’ protections Part-time worker protection Other quasi-employment law protections Discrimination litigation – an LLP member’s access to information Chapter 16. Funding and Profits and Losses Funding Profits and losses Chapter 17. The Business and Affairs of the LLP: Conduct and Decision-Making Introduction Participation in the business and affairs of the LLP Decision-making Fetters on decision-making powers Chapter 18. The Member and the Outside World Introduction Contracts Deeds Torts Fiduciary obligations Liability in an insolvent liquidation Chapter 19. Cessation of Membership and its Consequences Introduction Cessation of membership Consequences of cessation of membership No agreement as to entitlement on cessation Chapter 20. UK Financial Services Regulation and LLPs Introduction Regulated activities and the need for authorisation Obtaining FCA authorisation and being FCA-authorised Other regulatory requirements Collective investment schemes Alternative investment funds Chapter 21. Accounts and Audit Introduction Accounting records Financial year Individual accounts: IAS and non-IAS Non-IAS individual accounts Group accounts Audit and auditors’ report Approval of the annual accounts Filing accounts with the registrar Circulation and publication of accounts Revision of accounts and reports Accounts in euros Exemptions from audit requirements Chapter 22. The Appointment and Position of Auditors of LLPs Introduction Appointment Term of office Requirements for appointment as auditors Duties, and rights, of the auditors Omitting the name of the auditors Fixing the auditors’ remuneration Termination of appointment Section 519 statement ‘In default’ Notification of cesser of appointment to the appropriate audit authority Section 1157 relief Indemnities and liability limitation agreements Chapter 23. Taxation of LLPs and Members Introduction Computation of taxable profits Individual members’ taxation Partial incorporation to an LLP National insurance contributions Capital gains tax (CGT) Liquidation/winding up Stamp duty Stamp duty land tax (SDLT) Inheritance tax (IHT) Value added tax (VAT) Costs of conversion Anti-avoidance legislation Transfer pricing LLP expanding overseas UK branches of overseas LLPs Chapter 24. Investigations, Striking Off and Rectification of the Register Government power to investigate or require information Striking the LLP’s name off the register Rectification of the register Chapter 25. LLPs in Other Jurisdictions Introduction Other jurisdictions Chapter 26. Foreign Connections and Dealing with Overseas LLPs Foreign connections of UK LLPs Overseas LLPs Chapter 27. Insolvency and Winding up of LLPs: A General Introduction Introduction Chapter 28. Moratorium and Voluntary Arrangements Moratorium Voluntary arrangements Chapter 29. Administration Introduction Appointment by the court Appointment of administrator by holder of floating charge Appointment of administrator by LLP Moratorium Statement of LLP’s affairs Administrator’s proposals and creditors’ approval Conduct of the administration Chapter 30. Receivership Introduction Limitation on the appointment of administrative receivers Appointment of receivers Duties and powers Statement of affairs in administrative receivership Administrative receiver’s report Chapter 31. Commencement of Winding Up Voluntary winding up Compulsory winding up Application for a winding-up order Functions of official receiver and appointment of a liquidator Chapter 32. Unfair Prejudice and Just and Equitable Winding Up Introduction The statutory provisions Who can present a petition? Application of statutory provisions to LLPs Chapter 33. Conduct of the Liquidation General Status of members’ claims Disclaimer of onerous property Rescission of contracts Crown preference and top slicing Chapter 34. Misfeasance and Adjustment of Prior Transactions Malpractice and misfeasance Fraudulent trading Wrongful trading Adjustment of withdrawals Transactions at an undervalue Preferences Extortionate credit transactions Avoidance of floating charges Unenforceability of liens Transactions defrauding creditors Re-use of LLP names Chapter 35. Completion of the Winding Up and Dissolution Introduction Voluntary winding up Compulsory liquidation Consequences of dissolution Chapter 36. Arrangements and Reconstructions Introduction Companies Act 2006, sections 895 to 900 Insolvency Act 1986, section 110 Companies (Cross-Border Mergers) Regulations Chapter 37. Disqualification The legislation and the scope of a disqualification order Unfitness Other grounds for disqualifi cation Compensation orders Consequences of contravention Applications for leave to act Appendix 1. Limited Liability Partnerships Act 2000 Schedule 1: Names and registered offices Appendix 2. Limited Liability Partnerships Regulations 2001, SI 2001/1090 Index