Wednesday, 22 January 2014

Setting up in India? LLP or Corporation?


Here's a quick comparison between the two structures under the Indian law.



Category


LLP

Corporation

Suitable for

LLPs are suitable for organizations providing services by professionals 
like consultancies.


Corporations are suitable for start-ups that want to scale up rapidly.

Prevailing law

The Limited Liability Partnership Act, 2008.


The Companies Act, 1956.

Registration


Registration of a LLP with the registrar is required.


Registration of a company with the registrar of companies is required.


Ownership

LLPs are owned by the partners.


Corporations are owned by shareholders.

Cost

The minimum cost of formation of a LLP is INR 800 only, comparatively much lesser than the cost of formation of a company.


The minimum statutory fee for incorporation of a private company is INR 6,000 and that of a public company is INR 19,000.


Managed by


LLPs are managed by the partners.


Corporations are managed by the directors.



Perpetual Succession

LLPs have perpetual succession and partners may come and go.

Companies also have perpetual succession and members may come and go.


Documents

The LLP agreement defines the scope of operation and rights and duties of the partners.


The scope of operation is defined in the memorandum and the articles of association.

Number of partner/members

An LLP should have a minimum of 2 partners and there is no limitation of maximum number of partners.


A private company should have between 2 to 50 members and a public company should have a minimum of 7 members.



Ease of operation

Operating a LLP is relatively easier than a corporation.


Operating a corporation is considerably more difficult than operating a LLP.


Rights, duties, obligations of the partners/directors

Rights, duties, obligations of the partners are governed by the LLP agreement.

Rights, duties, obligations of the directors are governed by the articles of association and resolution passed by shareholders or directors.


Foreign participation


Foreign nationals can be partners in a LLP.


Foreign nationals can be members in a company.



Liability of partners/members

The liabilities of a partner are limited, to the extent of their contribution towards the LLP, except in the case of intentional fraud or wrongful act of omission or commission by the partner.


The liabilities of shareholders in a company are generally limited to the amount required to be paid up on each share.

Transfer of partnership rights/shares in case of death

In case of death of a partner, their legal heirs will not become partners, unless specified in the LLP agreement.


In case of death of a member, the shares are transmitted to the legal heirs.

Admission as partner/member


A person can be admitted as a partner as per the LLP agreement.


A person can become a member by buying shares in a company.

Voting Rights

The voting rights shall be as decided as per the terms of the LLP agreement.


The voting rights are decided as per the number of shares held by the members.





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