Legal foundations and charitable foundations are founded in Germany


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A foundation obtains its legal capacity through the recognition of the foundation supervisory authority (Landesbehörde). But by then, it is a long way, which we want to sketch in detail here.

German-Stiftung reasons-9


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The foundation business

On the first stage, the so-called foundation business takes place. This is a unilateral letter of intent requiring written consent. The main component of the foundation business is the establishment of a statute.

The absolute core compo- nents of the foundation business are:

  • Name
  • Seat
  • organs
  • Pledge of the transfer of property by the founder
  • assets equipment
  • Purpose of the Foundation

Request sample statutes

In addition, the individual countries have laid down further provisions in their foundation laws. If you are playing with the idea of ​​setting up a foundation, you can request or download sample rates from the respective state authorities.

This is very helpful, since, in addition to the required components according to the German Civil Code (BGB), the country-specific regulations are also incorporated, and a modified pattern kit can thus shorten the following stage two.

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Name and seat of the foundation

But first a few explanations to the listed components: Foundations should indeed often represent a legacy. Therefore, the foundation name will usually contain the founder name, or the name of the person to be reminded with the foundation (eg Konrad-Adenauer-Stiftung).

The seat of the foundation is freely selectable, so it can be determined independently of the place of residence of the founder. Legal minimum organ of the foundation is the executive committee. Depending on the size of the foundation and the assets to be managed, other bodies may be set up, such as an advisory board, a board of trustees or a supervisory board.

If the foundation was established during the lifetime, the founder may reserve a right to designate the organs. In doing so, he himself can be called an organ.

The foundation assets

As already explained, the foundation's assets should not be too tight. The foundation's assets must be at least so high that the purpose of the foundation is fulfilled and the ongoing administrative expenses can be covered by the income.

If this is not ensured due to the small size of the property, the rejection of the foundation fee will result. The purpose of the foundation should, however, not be defined too narrowly, so that the foundations of the foundations can still be left to decide.

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The purpose of the foundation

They have set up a foundation with the purpose of founding and maintaining the children's playground in the Schwabenallee in Berlin-Biesdorf. This works for several years wonderful, but then the area is rebuilt with a school. The playground does not exist anymore.

The purpose of the foundation can no longer be fulfilled. The foundation would have to be dissolved. It is possible that the foundation supervisory authority adapts to the purpose of the foundation in order to avoid dissolution. Nevertheless, it is advisable to consider the purpose of the foundation more generally (eg maintenance and maintenance of a children's playground in Berlin-Biesdorf).

Submit the statute

If the foundation business is set up together with the statutes, this is submitted to Section 2 of the Senate Administration (eg Senate Administration for Justice). In the case of a non-profit foundation (contribution follows), it is also necessary to recognize the charitable status of the Directorate-General.

In order to accelerate the recognition process, it is also advisable to submit the drafts in advance in order to request informally desired changes. If the foundation business meets the legal requirements, the foundation is recognized. With recognition, the founder is obliged to transfer the assets indicated in the foundation business. The foundation business can start!

Gemeinnützigkeit der Stiftung anstreben – die Gründe

Anyone who plays with the idea of ​​founding a foundation should always strive for charity. For the Foundation's status as a non-profit foundation is associated with immense advantages.

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As a rule, a foundation under private law is set up to set a “monument” to the founder and to do something good. The status of nonprofit naturally increases the reputation of a foundation. Public funding is also easier to access. So what needs to be done to establish not just a foundation, but a non-profit foundation?

The funds collected must be used promptly. In a timely manner, the funds are used up to the end of the following financial year. Deviating from this, reserves can also be created to save more capital expenditure. However, this must be documented.

Charity and taxation

If the foundation is charitable, the tax exemption would be exempt from corporation tax, commercial and land tax. The tax-specific features are discussed in a separate article.

In addition, the donations to the Foundation can be deducted as donations. In addition, non-profit activities in the non-profit sector can be remunerated with a tax-exempt amount of up to 2.100 € per year (§3 No. 26 ESTG).

How to found a charitable foundation

In the statutes, the pursuit of charitable purposes must be clearly defined and secured by the ongoing business operation. In doing so, the public must be selflessly promoted in material, intellectual or moral matters. In the 52 section of the Tax Code, the recognized purposes are listed.

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These include, for example:

  • the promotion of science and research
  • the promotion of religion
  • the promotion of youth and elderly aid
  • the promotion of art and culture
  • the promotion of animal welfare
  • the promotion of animal breeding, carnival, model flights and dog sports
  • and many other areas.

Purpose and administration

It is therefore compulsory that the subsidized purposes must be open to all and not only to a closed group of people. The management must be directed to pursue these purposes directly, exclusively and selflessly. For example, it is not enough, for example, to promote dog sport, and to consider family members as well.

Administrative expenditure must not be exorbitant in order to jeopardize the status of charity. An administrative cost ratio of 30 per cent would therefore lead to the revocation of charity.

How is the founding procedure going?

A provisional certificate of non-profit-making is issued by the financial administration when the statutes are drawn up. This provisional certificate shall be valid for 18 months. The financial statements are then checked regularly (in the 3 annual cycle).

In the run-up to the founding, a draft statutes should also be sent to the financial administration with the request for confirmation that the statutory requirements are fulfilled. If deficiencies are still present, these can be eliminated at the start-up stage.

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