Charitable or non-profit is behavior by individuals or corporations that serves the common good . However, only those activities that serve the common good are also non-profit in the tax law sense, which are finally listed in Tax Code (AO). This includes the promotion of science and research , education and training , art and culture and sport, as well as disaster and humanitarian aid . Other purposes that serve the common good do not necessarily have to be non-profit in this sense, as these are not included in the legal term .
The term is also relevant under tax law. If a corporation, association of persons or assets ( foundations ) have been recognized by the tax office as non-profit, they are usually favored or entirely exempt from income taxes and wealth taxes .
The charitable status is legally defined in Germany in (1) AO . It says: "A corporation pursues charitable purposes if its activity is aimed at unselfishly promoting the general public in a material, spiritual or moral field ."
Non-profit status is one of the tax-privileged purposes :
- Corporate income tax : Income up to an amount of € 35,000 annually is tax-harmless ( (3) AO). If the income is above this limit, the tax privilege does not apply, unless the generation of income necessarily belongs to the charitable activity, in which case it is a so-called special-purpose operation . In practice, only the special-purpose establishments named in to AO are important, e.g. B. hospitals , welfare institutions, science, education and culture under the respective special conditions.
- Sales tax : If the corporation is doing business in order to achieve its charitable purposes and the services provided are not exempt from sales tax according to UStG , the services are subject to sales tax - taxable commercial business - (for the reduced tax rate, see also: para No. 8 UStG).
Many non-profit organizations in Germany are organized under civil law as registered or unregistered associations , in addition to foundations, non-profit GmbHs ( gGmbH ) and - less often - non-profit stock corporations , for example Zoologischer Garten Berlin AG , which can also serve charitable purposes according to the statutes. Only corporations, including unregistered associations, are tax-exempt, but not partnerships such as B. the BGB-Gesellschaft . Since 2000, donations to foundations can be deducted to a greater extent for tax purposes than donations to other charitable organizations.
As a free nonprofit refers facilities that carriers of the church and voluntary welfare organizations, churches , foundations, associations or recently increasingly be entertained by non-profit limited liability companies. Since the early 1990s, non-profit limited liability companies have increasingly been founded by natural persons. The commitment of these people is summarized under the term social entrepreneurship .
Requirements for recognition
The following requirements must be met for recognition as a tax-privileged corporation:
- The corporation must pursue charitable, charitable or church purposes.
- The purpose must be selflessly, exclusively and immediately pursued.
- All prerequisites for tax breaks must be evident from the articles of association. The statutes must also specify the type of implementation.
- The articles of association must contain a regulation that the assets of the corporation will also be used for tax-privileged purposes in the future if the tax-privileged purposes are dissolved or the tax-privileged purposes cease to exist (so-called accumulation clause).
- The actual management must correspond to the statutes ( AO).
According toAbs. 2 AO u. a. to recognize the following goals as non-profit (incomplete list):
- the promotion of science and research
- the promotion of education and training
- the promotion of art and culture
- promoting international understanding
- the promotion of aid for those persecuted politically, racially or religiously, for refugees, displaced persons, repatriates, ethnic German repatriates and others
- the promotion of monument protection and preservation
- the promotion of nature conservation and landscape management
- the promotion of homeland care and local history
- the promotion of traditional customs (including Carnival, Mardi Gras and Mardi Gras )
- the promotion of animal welfare
- the promotion of sport
- promoting development cooperation
- the promotion of civic engagement in favor of charitable, benevolent and church purposes (since January 1, 2007)
When founding a tax-privileged corporation, it is advisable to coordinate the articles of association (association) or the partnership agreement (GmbH) with the tax office at an early stage in order to avoid costly new general meetings to amend the articles of association if the articles of association that have already been adopted do not meet the requirements of the AO. After the establishment, an application can be made to the tax office for a notice of assessment in accordance with donation receipts) for a maximum of five years . Due to tax secrecy, the tax offices in Germany did not provide any information on the non-profit status of associations.AO. However, this decision only confirms that the statutory requirements for tax relief are met. After that, the tax office regularly checks every three years whether the non-profit principles are being adhered to, and then issues a notice of exemption (application decree to AO). This then entitles the holder to issue donation receipts (
Withdrawal from non-profit status
Recognition as non-profit can be withdrawn retrospectively if the corporation pursues a primarily economic purpose or uses non-profit, tied assets for purposes other than those for which they are intended (to AO).
Non-profit associations can be found in the register of associations , non-profit corporations and private foundations in the commercial register . What they have in common is the non-profit status according to §§ 34–47 f of the Federal Tax Code (BAO). There is generally no special legal form of the non-profit.
Section 35 BAO defines:
“Non-profit purposes are those which, if they are fulfilled, promote the general public.
Funding for the general public is only given if the activity is of benefit to the common good in an intellectual, cultural, moral or material field. This applies in particular to the promotion of art and science, health care, child, youth and family welfare, care for old, sick or physically handicapped people, physical exercise, popular housing, school education, upbringing, popular education , vocational training, monument preservation, nature, animal and cave protection, local history, homeland care and the fight against natural hazards. "
In addition, there are non-profit building associations in Austria which are recognized as non-profit within the framework of the non-profit housing law. Not-for-profit building associations are tax-privileged housing developers who perform tasks of housing and settlement that serve the common good and have a decisive influence on the supply of housing in Austria to this day.
In the BAO, the actual charitable purposes (§ 35 BAO) are separated from the charitable purposes (§ 37 BAO, humanitarian and charitable commitment for individual persons or groups) and church purposes (promotion of legally recognized churches and religious communities ). This is due to the fact that they do not benefit the general public as a whole (legal definition of § 36 BAO on groups of people who are “not to be understood as general public”).
Non-profit status is not a legally protected term. In general, it is understood to mean “working for the general public”, which is an extremely flexible term and can also include economic interests. On the other hand, the officially recognized non-profit status is clearly demarcated: In Switzerland, a "real" non-profit status is only attested by the cantonal tax offices by subjecting the legal entities to a detailed examination and ultimately removing the tax on municipal, state (cantons) - and exempt federal level.
Examination for tax exemption due to charitable work
The legal basis of Art. 56 lit. G of the Federal Act on Direct Federal( ) requires a legal person to be exempted from tax liability that they pursue public or charitable purposes and that the profit and capital for which they are seeking tax exemption are exclusively and irrevocably these Purposes.
The activity that wants to be charitable presupposes two things: on the one hand, it must be directly, unrestrictedly and permanently aimed at the common good and, on the other hand, it may only be carried out in a disinterested manner. A legal person is unselfishly active if it does not pursue profit or self-help purposes and behaves selflessly, d. H. makes a financial sacrifice in favor of a third party with no consideration or personal gain.
In Art. 56 lit. G DBG it is stated that entrepreneurial purposes are fundamentally not non-profit.
Employment and competitive neutrality
The tax-exempt activity must be aimed exclusively at the charitable task or the well-being of third parties. If an institution is primarily pursuing an economic activity (profit-making purpose) and is thus in economic competition with other providers, there is no need to further check whether it is at most devoted to charitable purposes. A tax exemption in this regard always results in a violation of the principle of competition neutrality. Earning purposes exist if the institution uses capital and labor in economic competition or in an economic monopoly with the purpose of making a profit and demands a total remuneration for its services, as it is usually paid in economic life. According to the principle of competition neutrality of the tax regime, all competitors in the market are to be granted the same conditions. Where several providers appear in the same market and compete with one another, they are entitled to non-competitive treatment. A tax exemption must not interfere with free competition. Equal competitive opportunities only exist if, among other things, the economic performance of comparable economic entities is reduced by the tax in a comparable manner. The fact that, as a result of the tax exemption and thus the lack of tax burden, a service can be offered more cheaply than the competition would lead to an unjustified competitive advantage.
Examples of non-profit legal persons are in the vast majority of cases foundations (example ZEWO foundation ), followed by associations (example Benevol Baselland ) and in rare cases corporations (example B-Vertrieb GmbH). In the case of corporations in particular, one of the basic requirements for a recognized charitable status is that the capital is not misappropriated, e.g. B. through profit distributions, which is also regularly checked by the tax offices.
- Non-profit organization
- Principle of the public benefit
- 501 (c) organization in the United States
- Johannes Buchna, Andreas Seeger, Wilhelm Brox, Carina Leichinger: Charitable status in tax law . 11th edition. Erich-Fleischer-Verlag, Achim 2015, ISBN 978-3-8168-4041-1 .
- Stephan Schauhoff: Handbook of the public benefit . 3. Edition. Verlag CH Beck, Munich 2010, ISBN 978-3-406-59794-7 .
- Hans-Georg Reuber: The taxation of the clubs . 2nd Edition. Schäffer-Poeschel Verlag, Stuttgart, ISBN 978-3-8202-0171-0 (loose-leaf work with supplementary supplies).
- Herbert Schleder: Tax law of the associations . 9th edition. NWB-Verlag, Herne 2009, ISBN 978-3-482-42979-8 .
- Helmut K. Anheier, Volker Then (ed.): Between self-interest and common good: New forms and ways of non-profit. 1st edition. Bertelsmann Stiftung, Gütersloh 2010, ISBN 978-3-86793-155-7 ( available online).
- Evelyne Menges: Charitable Institutions. Establish, manage and optimize nonprofit organizations . 2nd Edition. Deutscher Taschenbuch Verlag, Munich 2013, ISBN 978-3-406-59311-6 .
- Public utility despite ATTAC ruling - tax authorities should no longer be active , Handelsblatt .
- Controversy about non-profit status - Attac, DUH co have to worry about tax privileges , Stuttgarter Zeitung .
- According to Attac's judgment on public utility , taz .
- Suspicion against Verein Uniter loses charitable status on FAZ .
- see e.g. B. Content minutes VerfSch 16/3 of the Berlin House of Representatives ; accessed on February 14, 2020.
- Ruth Simsa, Doris Schober: Nonprofit Organizations in Austria. NPO Competence Center, Vienna, 2012 ( pdf ( memento from April 21, 2015 in the Internet Archive ), ongemnuetzig.at).
- Although companies occasionally call themselves, for example, “non-profit GmbH”, this does not refer to a legal form like the gGmbH in Germany.
- Whereby the EStG names the charitable purposes under the tax concessions, but not the church ones, which corresponds to the separation of church and state : Donations to church organizations are only favored if they are charitable or charitable as such.
- Jan Kuhnert, Olof Leps: The non-profit housing in Austria . In: New non-profit housing . Springer Fachmedien Wiesbaden, 2017, ISBN 978-3-658-17569-6 , p. 179-186 , p. 179 , doi : 10.1007 / 978-3-658-17570-2_6 ( springer.com [accessed February 28, 2017]).
- cf. Doubt / Athanas: Commentary on Swiss Tax Law I / 1, Federal Act on the Harmonization of Direct Taxes of the Cantons and Municipalities (StHG) , 2nd edition, Basel / Geneva / Munich 2002, N 33 on Art. 23.
- Weidmann / Grossmann / Zigerlig: signposts through the st. Gallic tax law , 6th edition, Muri-Bern 1999, p. 266.
- Locher: Commentary on DBG Part II , Therwil / Basel 2004, N 88 ff. On Art. 56.
- SGE 1983 No. 3, SGE 1999 No. 25.
- StB 80 No. 2 No. 2.7.