Foundation (nonprofit)

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A foundation (also referred to as a charitable foundation) is a type of nonprofit organization or charitable trust that usually provides funding and support to other charitable organizations through grants, while also potentially participating directly in charitable activities. Foundations encompass public charitable foundations, like community foundations, and private foundations, which are often endowed by an individual or family. Nevertheless, the term "foundation" might also be adopted by organizations not primarily engaged in public grantmaking. [1]

Contents

Description

Legal entities existing under the status of "foundations" have a wide diversity of structures and purposes. Nevertheless, there are some common structural elements.

Chart of a foundation Chart of a foundation.jpg
Chart of a foundation

Some of the above must be, in most jurisdictions, expressed in the document of establishment. Others may be provided by the supervising authority at each particular jurisdiction.[ citation needed ]

Europe

There is no commonly accepted legal definition across Europe for a foundation. There was a proposal for a European Foundation Statute, a legal form that would create a legal definition recognised across all EU Member States. However, this proposal was withdrawn in 2015 following its failure to pass through COREPER 1. [2] [3]

Foundations in civil law

The term "foundation", in general, is used to describe a distinct legal entity. Foundations as legal structures (legal entities) and/or legal persons (legal personality) may have a diversity of forms and may follow varying regulations depending on the jurisdiction where they are created. Foundations are often set up for charitable purposes, family patrimony and collective purposes which can include education or research. [4]

In some jurisdictions, a foundation may acquire its legal personality when it is entered in a public registry, while in other countries a foundation may acquire legal personality by the mere action of creation through a required document. Unlike a company, foundations have no shareholders, though they may have a board, an assembly and voting members. A foundation may hold assets in its own name for the purposes set out in its constitutive documents, and its administration and operation are carried out in accordance with its statutes or articles of association rather than fiduciary principles. The foundation has a distinct patrimony independent of its founder.

Finland

In Finland, foundations (Finnish : säätiö, Swedish : stiftelse) are regulated by the Finnish Patent and Registration Office and have the four following characteristics: [5]

Foundations are considered legal persons in Finland. The Foundations Act in 2015 dramatically updated the laws regarding foundations. [6]

France

There are not many foundations in comparison to the rest of Europe. In practice public administration requires at least €1 million necessary. State representatives have a mandatory seat in the board. [7]

Germany

German regulations allow the creation of any foundation for public or private purposes in keeping with the concept of a gemeinwohlkonforme Allzweckstiftung ("general-purpose foundation compatible with the common good"). A foundation should not have commercial activities as its main purpose, but they arre permitted if they serve the main purpose of the foundation. There is no minimum starting capital, although in practice at least €50,000 is considered necessary.

A German foundation can either be charitable or serve a private interest. Charitable foundations enjoy tax exemptions. If they engage in commercial activities, only the commercially active part of the entity is taxed. A family foundation serving private interests is taxed like any other legal entity. There is no central register for German foundations.

Only charitable foundations are subject to supervision by state authorities. Family foundations are not supervised after establishment. All forms of foundations can be dissolved, however, if they pursue anti-constitutional aims. Foundations are supervised by local authorities within each state (Bundesland) because each state has exclusive legislative power over the laws governing foundations.

In contrast to many other countries, German law allows a tax-sheltered charitable foundation to distribute up to one-third of its profit to the founder and his next of kin, if they are needy, or to maintain the founder's grave. These benefits are subject to taxation.

As of 2008, there are about 15,000 foundations in Germany, about 85% of them charitable foundations. More than 250 charitable German foundations have existed for more than 500 years; the oldest dates back to 1509. There are also large German corporations owned by foundations, including Bertelsmann, Bosch, Carl Zeiss AG and Lidl. Foundations are the main providers of private scholarships to German students.

Italy

In Italy, a foundation is a private non-profit and autonomous organization, its assets must be dedicated to a purpose established by the founder. The founder cannot receive any benefits from the foundation or have reverted the initial assets. The private foundations or civil code foundations are under the section about non commercial entities of the first book of the Civil Code of Law of 1942. Article 16 CC establishes that the foundation's statutes must contain its name, purpose, assets, domicile, administrative organs and regulations, and how the grants will be distributed. The founder must write a declaration of intention including a purpose and endow assets for such purpose. This document can be in the form of a notarized deed or a will. To obtain legal personality, the foundation must enroll in the legal register of each prefettura (local authority) or some cases the regional authority. There are several nuances in requirements according to each foundation's purpose and area of activity.

Netherlands

Non-profit foundations are termed as stichting in the Netherlands which are regulated by Dutch law.

Norway

Portugal

A foundation (Fundação) in Portugal is regulated by Law 150/2015, [8] with the exception of religious foundations, which are regulated by the Religious Freedom Law. Foundations may be private, wholly public (created and managed exclusively by public bodies), or public but with private management (created by public entities and optionally also private entities, but whose management is dominated by private entities). Foundations may only be operational after being recognized by the Prime Minister of Portugal.

Foundations must designate and pursue at least one of twenty-five public benefit goals defined by law. They must also have enough assets to pursue those goals. They may not benefit the founders or any other restricted group, but the general public.

Portuguese foundations may voluntarily associate themselves via the Portuguese Foundation Centre (CPF – Centro Português de Fundações), that was founded in 1993 by the Eng. António de Almeida Foundation, the Calouste Gulbenkian Foundation and the Oriente Foundation. [9]

Spain

Foundations in Spain are organizations founded with the purpose of not seeking profit and serving the general needs of the public. Such foundations may be founded by private individuals or by the public. These foundations have an independent legal personality separate from their founders. Foundations serve the general needs of the public with a patrimony that funds public services and may not be distributed to the founders' benefit.

Sweden

A foundation in Sweden (Swedish : stiftelse) is a legal entity without an owner. It is formed by a letter of donation from a founder donating funds or assets to be administered for a specific purpose. When the purpose is for the public benefit, a foundation may enjoy favorable tax treatment. A foundation may have diverse purposes, including but not limited to public benefit, humanitarian or cultural purposes, religious, collective, familiar, or the simple passive administration of funds. Normally, the supervision of a foundation is done by the county government where the foundation has its domicile, however, large foundations must be registered by the county administrative board (CAB), which must also supervise the administration of the foundation. The main legal instruments governing foundations in Sweden are the Foundation Act (1994:1220) and the Regulation for Foundations (1995:1280).

Switzerland

A foundation needs to be registered with the company register. [10]

Foundations in common law

Canada

Under Canadian law, registered charities may be designated as charitable organizations, public foundations, or private foundations. The designation depends on factors such as the charity's structure, funding sources, and mode of operation. Charities receive notification of their designation from the Canada Revenue Agency (CRA) upon registration. A charity with only one director or trustee is automatically designated as a private foundation. To be designated as a charitable organization or public foundation, more than half of the directors, trustees, or officials must be at arm's length. The CRA applies specific criteria to determine the designation, including the charity's purposes, activities, income allocation, and relationships with officials and donors. [11]

Ireland

The law does not prescribe any particular form for a foundation in Ireland. Most commonly, foundations are companies limited by guarantees or trusts. A foundation can obtain a charity registration number from the Revenue Commissioners for obtaining tax relief as far as they can be considered under the law on charity, however, charitable status does not exist in Ireland. The definition usually applied is that from the Pemsel Case of English jurisprudence (1891) and the Irish Income Tax Act 1967. Trusts have no legal personality and companies acquire their legal status through the Company law and the required documents of incorporation. Foundations are not required to register with any public authority.

United Kingdom

In the UK, the word "foundation" is sometimes used in the title of a charity, as in the British Heart Foundation and the Fairtrade Foundation. Despite this, the term is not generally used in English law, and (unlike in civil law systems) the term has no precise meaning. Instead, the concept of charitable trust is in use (for example, the Wellcome Trust).

The States of Jersey are considering introducing civil law type foundations into its law. A consultation paper presenting a general discussion on foundations was brought forth to the Jersey government concerning this possibility. It was adopted by the states of Jersey on 22 October 2008 through the Foundations (Jersey) Law 200. [12]

United States

In the United States, many philanthropic and charitable organizations (such as the Bill & Melinda Gates Foundation) are considered to be foundations. However, the Internal Revenue Code distinguishes between private foundations (usually endowed by an individual, family, or corporation) and public charities (community foundations or other nonprofit groups that raise money from the general public). While they offer donors more control over their charitable giving, private foundations have more restrictions and fewer tax benefits than public charities.

International networks

At an international level there are a series of networks and associations of foundations, among them Council on Foundations, [13] EFC (European Foundation Centre), [14] WINGS (Worldwide Initiatives for Grantmaker Support). [15] [16] Those organization also have a role in supporting research on foundations.

See also

Further reading

Further listening

Related Research Articles

<span class="mw-page-title-main">Trust (law)</span> Three-party fiduciary relationship

A trust is a legal relationship in which the owner of property, or any transferable right, gives it to another to manage and use solely for the benefit of a designated person. In the English common law, the party who entrusts the property is known as the "settlor", the party to whom it is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property is known as the "corpus" or "trust property". A testamentary trust is an irrevocable trust established and funded pursuant to the terms of a deceased person's will. An inter vivos trust is a trust created during the settlor's life.

A nonprofit organization (NPO), also known as a nonbusiness entity, nonprofit institution, or simply a nonprofit, is a legal entity organized and operated for a collective, public or social benefit, as opposed to an entity that operates as a business aiming to generate a profit for its owners. A nonprofit organization is subject to the non-distribution constraint: any revenues that exceed expenses must be committed to the organization's purpose, not taken by private parties. Depending on the local laws, charities are regularly organized as non-profits. A host of organizations may be nonprofit, including some political organizations, schools, hospitals, business associations, churches, foundations, social clubs, and consumer cooperatives. Nonprofit entities may seek approval from governments to be tax-exempt, and some may also qualify to receive tax-deductible contributions, but an entity may incorporate as a nonprofit entity without having tax-exempt status.

<span class="mw-page-title-main">Charitable trust</span> Irrevocable trust established for charitable purposes

A charitable trust is an irrevocable trust established for charitable purposes. In some jurisdictions, it is a more specific term than "charitable organization". A charitable trust enjoys varying degrees of tax benefits in most countries and also generates goodwill. Some important terminology in charitable trusts includes the term "corpus", referring to the assets with which the trust is funded, and the term "donor," which is the person donating assets to a charity.

<span class="mw-page-title-main">Charitable organization</span> Nonprofit organization with charitable purpose

A charitable organization or charity is an organization whose primary objectives are philanthropy and social well-being.

United States non-profit laws relate to taxation, the special problems of an organization which does not have profit as its primary motivation, and prevention of charitable fraud. Some non-profit organizations can broadly be described as "charities" — like the American Red Cross. Some are strictly for the private benefit of the members — like country clubs, or condominium associations. Others fall somewhere in between — like labor unions, chambers of commerce, or cooperative electric companies. Each presents unique legal issues.

In the United States, a donor-advised fund is a charitable giving vehicle administered by a public charity created to manage charitable donations on behalf of organizations, families, or individuals. To participate in a donor-advised fund, a donating individual or organization opens an account in the fund and deposits cash, securities, or other financial instruments. They surrender ownership of anything they put in the fund, but retain advisory privileges over how their account is invested, and how it distributes money to charities.

Laws regulating nonprofit organizations, nonprofit corporations, non-governmental organizations, and voluntary associations vary in different jurisdictions. They all play a critical role in addressing social, economic, and environmental issues. These organizations operate under specific legal frameworks that are regulated by the respective jurisdictions in which they operate.

A 501(c)(3) organization is a United States corporation, trust, unincorporated association or other type of organization exempt from federal income tax under section 501(c)(3) of Title 26 of the United States Code. It is one of the 29 types of 501(c) nonprofit organizations in the US.

<span class="mw-page-title-main">Supporting organization (charity)</span> Legal category of charity in the United States

A supporting organization, in the United States, is a public charity that operates under the U.S. Internal Revenue Code in 26 USCA 509(a)(3). A supporting organization either makes grants to, or performs the operations of, a public charity similar to a private foundation.

<span class="mw-page-title-main">Private foundation</span> Type of charitable organization

A private foundation is a tax-exempt organization that does not rely on broad public support and generally claims to serve humanitarian purposes.

A foundation in the United States is a type of charitable organization. However, the Internal Revenue Code distinguishes between private foundations and public charities. Private foundations have more restrictions and fewer tax benefits than public charities like community foundations.

Until 1969, the term private foundation was not defined in the United States Internal Revenue Code. Since then, every U.S. charity that qualifies under Section 501(c)(3) of the Internal Revenue Service Code as tax-exempt is a "private foundation" unless it demonstrates to the IRS that it falls into another category such as public charity. Unlike nonprofit corporations classified as a public charity, private foundations in the United States are subject to a 1.39% excise tax or endowment tax on any net investment income.

<span class="mw-page-title-main">Low-profit limited liability company</span> Legal form of business entity in the US

A low-profit limited liability company (L3C) is a legal form of business entity in the United States. Commonly referred to as a hybrid structure, it has characteristics of both for-profit and non-profit entities. L3Cs were created to comply with the Internal Revenue Service (IRS) program-related investments (PRIs) rules which allow most typically private foundations the ability to maintain tax-exempt status through investments in qualifying businesses and/or charities. With a social mission as the primary objective and a secondary objective of profit generation, the L3C legal form is considered a viable option for businesses seeking a reputation or marketability for being a social enterprise.

A Stiftung is an institution or foundation that, with the aid of a property, pursues a purpose determined by the founder.

A charitable organization in Canada is regulated under the Canadian Income Tax Act through the Charities Directorate of the Canada Revenue Agency (CRA).

A charitable for-profit entity is an organization with a charitable mission but legally organized as a for-profit corporation. Both benefit corporations and Low-profit limited liability companies (L3C) fall under this category. As well as generating a profit, a charitable for-profit entity concentrates on setting a social objective. The business must achieve its social purpose, as well as make a profit, to be successful. There are movements to refine strategies, retuning community-oriented activities based on ROI of Little Investment or Small Capital, Low Risk, yet, higher return and rebranding nonprofit entities from wholly-dependable funding beneficiary from Governments or public i.e. business organization or individual. previously, we often heard of Nonprofits and community-based organizations, now, For-profits community-based Social Enterprises The case of organizing charitable work under for-profit rules rather than as a traditional charity such as a foundation gained prominence when Google announced its Google.org branch in 2006. Since then, the subject has been under both academic and public debate with U.S. law professor Eric Posner arguing in favor of expanding Charity law to include for-profit charities, while Brian Galle considered the legislative popularity of social enterprises a "race to the bottom among states competing to siphon away federal tax dollars for local businesses."

A stichting is a Dutch legal entity with limited liability, not aiming to make profit, with no members or share capital, that exists for a specific purpose that is serving a public, social or an idealistic interest. A stichting is allowed to make profit but the legal condition is that this profit must be spend on achieving the foundation's goals. This form of entity makes it possible to separate functions of ownership and control.

The Tax and Customs Board, also known by its acronym MTA, is the taxation authority in the Republic of Estonia. It is an agency of the Ministry of Finance.

The National Court Register is the official company register of Poland. Launched in 2001, it is jointly administered by the Ministry of Justice and the regional courts. Most companies and organisations in Poland must register in order to legally conduct their activities, and only companies with a physical presence in Poland may register. Registered companies are afforded certain rights, including protection of their name. In the years following its introduction, the register underwent gradual digitalisation and since 2021 is only available electronically. The National Court Register operates through an IT system that enables the collection, verification, processing and exchange of data important for ensuring the order and security of legal transactions. The task of the National Court Register is to provide public access to fast and reliable information on the legal status of a registered person, the most important elements of its financial status and the way it is presented.

References

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  2. "Proposal for a Regulation on the Statute for a European Foundation (FE) – frequently asked questions". European Commission. 8 February 2012.
  3. Moss2014-11-28T15:02:00+00:00, Gail. "European Foundation Statute suffers setback". IPE. Retrieved 2020-01-23.{{cite web}}: CS1 maint: numeric names: authors list (link)
  4. "foundation". LII / Legal Information Institute. Retrieved 2023-08-02.
  5. "PRH - Foundations". www.prh.fi. Retrieved 2019-04-17.
  6. Moss, Gail (9 December 2015). "Finnish foundation law set to strengthen governance".
  7. "Archived copy" (PDF). Archived from the original (PDF) on 2010-12-28. Retrieved 2010-11-14.{{cite web}}: CS1 maint: archived copy as title (link)
  8. "Lei 150/2015, 2015-09-10". Diário da República Eletrónico.
  9. "The Portuguese Presentation Centre" (PDF). Cpf.org.pt. Archived from the original (PDF) on 2020-05-21. Retrieved 2017-03-30.
  10. Foundations: Assigning a purpose to capital, admin.ch, accessed 2020-09-14.
  11. "Types of registered charities (designations)". Canada Revenue Agency. 2016-06-03. Retrieved 2024-03-03.
  12. Jersey, States of. "Government of Jersey". gov.je. Retrieved 2021-10-23.
  13. "Council on Foundations". Cof.org. 2017-03-23. Retrieved 2017-03-29.
  14. "European Foundation Centre". Efc.be. Retrieved 2017-03-29.
  15. "Worldwide Initiatives for Grantmaker Support, Inc". Wingsweb.org. Retrieved 2017-03-29.
  16. Indirizzario in Elisa Bortoluzzi Dubach, Lavorare con le fondazioni. Guida operativa, Franco Angeli editore 2009 (Italian translation of Stiftungen. Der Leitfaden für Gesuchsteller, 2007).
  17. "Sound file". Traprockpeace.org. Archived from the original (MP£) on 2007-10-31. Retrieved 2017-03-30.