Open commercial company
an open commercial company (abbreviation: OHG or oHG) is a person commercial company, in which two or more natural persons and/or legal entities united, in order to operate under a common company a trade.
the company is the name, under which a buyer operates its business, carries its signatures out and complains under whom he and can be sued. The company of a OHG must contain the designation “open commercial company” or “OHG” in the name.
a OHG is created by at least 2 partners with the help of articles of association. If none of the paragraphs 110 to 122 HGB (legal bases to the OHG) is to be excluded, then the articles of association do not require a certain form. In principle necessarily forEstablishment of a OHG is thus only the will of the partners to operate under a common company a trade.
the establishment of the OHG does not depend on a certain minimum capital.
the OHG must
let entry in the trade register the partners of the OHG register in the trade register. Also in or withdrawal of a partner, the change of the company or the change of offices of the OHG must be announced for entry in the trade register. The entry is however only deklaratorisch. The entry takes place in the department of A in the trade register. Into the department of A the unincorporated firms come and into the department of B the finance companies.
for the guidance of the business is in principle all partners entitled and obligated, it is, in the articles of association is something else agreed upon. The managing director salaries for the partners are for taxation not deductible as operating expenditure; they are to be added to the respective partner during the fiscal distribution of profits as Vorwegvergütung. To consider the entry is in the trade register.
profit and loss distribution
In einer offenen Handelsgesellschaft haften die Partner (Teilhaber) mit voller Einlage und zusätzlich mit dem Privatvermögen, dadurch werden zwar schneller Darlehen von Geldinstituten akzeptiert (aufgrund der vollen Haftung -> relatively low risk for banks), the risk of the private failure with insolvency and/or Geschäftsaufgabe are however enormously higher than for example at a GmbH. The general allocation is normally contractually regulated. If this is not the case, then the allocation applies after the HGB, which means that each partner gets at least 4% of the brought in capital at profit. The remaining profit as well as the entire loss are divided after “heads”.
Example: 160,000 € profit in the year 2006 is distributed as follows:
Mr. Berger, Einlage 300.000 € Mr. Brunner, Einlage 400,000 €
in front: Interest charges of the insert with 4%
Mr. Berger 4% of 300.000 € = 12.000 € Mr. Brunner 4% of 400.000 € = 16.000 € --------------------------------------- Results in together 28,000 €
remainder: 160.000 € - 28000 € = 132000 €
the remaining profit is divided after headsMr. Berger 132000 € 1/2 = 66,000 €Mr. Brunner 132000 € 1/2 = 66.000 €
Distribution of profits 2006
Interest charges + remainder portion Profit Mr. Berger entirely: 12.000 € + 66.000 € = 78.000 € Mr. Brunner entirely: 16.000 € + 66.000 € = 82.000 €altogether 78.000 € + 82.000 € = 160,000 €
legal capacity of the OHG
a OHG can acquire commitments under their company Rechte and be received; she can be acquired property and other material rights at properties and complained and sued before court.
are responsible to adhesion
of the partners the partners of a OHG for the commitments of the society the creditors as total debtors personally. Everyone clings directly, unrestrictedly and totalliably/solidary. If a partner separates, he is responsible for the commitments justified up to then still five years. It pay attention that an occurring partner is responsible also for the commitments, which already exist with his entrance.
1. directly: The creditor can take up, for the payment independently of of commitments request each partner directly, whether the partner the commitment died personally.
2. unrestrictedly: The partners cling with their business and private possession.
3. totalliably/solidary: Each partner is responsible alone for the entire debts of the society. A partner cannot object opposite the creditor that in equal parts is to be carried the debts of all partners. Within the society there is however a balance requirement.
dissolution of a OHG
a OHG is dissolved:
- if it were entered for a certain time, by timing
- if the partners their dissolution decide
- if the insolvency procedure over the fortune of the society are opened
- by judicial decision
a partner separate from the OHG:
- by death of the partner
- by opening of the insolvency procedure over his fortune
- by notice of the partner
- by notice by a private creditor of the partner
- by resolution of the company meeting
- by entrance of the elimination reasons [work on],
, accounting of the OHG
a OHG is buyer in the sense of the commercial code. A buyer is obligated to lead and make evident in these its commercial transactions and the situation of its fortune after the principles of regular record keeping (GoB) books. A buyer has to set up to the reason of its trade and for the conclusion of each financial year the relationship of its fortune and its debts to explaining conclusion (opening balance , balance).
tax treatment of a OHG
to special operating abilities of economic goods, which a partner of a OHG for purposes of the OHG uses, to the special operating ability of the partner; they must in a so-called. Special balance to be proven.
the OHG is subject to trade tax idR. Of the OHG trade tax which can be paid is taken into account according to the distribution of profits key on the income tax of the partners. With the determination of the trade yield a free allowance is taken off from 24.500 euro.
value added tax
during the transmission of an enterprise in the way of the donation or succession on a successor with that inheritance-expensively a special free allowance for operating abilities is granted.
during the entry of a OHG result several costs:
Entry registration by a notary into the trade register : approx. 100 €
Entry by the district court (inclusive prescribed proclamations): approx. 300 €
Prescribed membership in the IHK: 50 € - 150 € per annum. Minimum rate, on request payment by instalments possible
Austrian commercial law
applies at present above in fundamentals also to the OGH after Austrian commercial law. However in the course of the commercial law reform stepping starting from 1.1.2007 into validity the open commercial company (OHG) is renamed into open society (OG).
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