A foundation is in Germany means that with the help of a fortune one of the founders pursued specified purpose. The aim is to preserve the assets in the long term and the beneficiaries can only enjoy the income . Foundations can take various legal forms and can be set up for any legal purpose. Most well-known foundations are private foundations under civil law and serve charitable purposes. There were around 20,700 foundations in Germany in 2018.
A distinction is made between funding foundations that financially support the activities of third parties and operational foundations that carry out projects themselves to fulfill the foundation's purpose. Most foundations are designed to last forever. However, foundations with a limited lifespan are also set up that gradually use up their assets ( consumer foundations ).
As a rule, a foundation has statutes which, among other things, stipulate the purposes and the manner in which they are implemented. Externally, the foundation is represented by a board of directors (which can also be named differently), but additional foundation bodies and committees can also be set up in accordance with the statutes . A foundation with legal capacity has neither owners nor - unlike an association or a society - members or partners. It is subject to the state supervision of foundations .
The legal act of establishing a foundation is known as the foundation business. The transfer of assets, especially for charitable, charitable or church purposes, is referred to as the transfer of foundation assets into the foundation stock.
Foundations can be set up both as legal entities ( legal foundation under civil or public law) and in the sponsorship of a trustee (non-legal, dependent, fiduciary or fiduciary foundation). Legal entities similar to foundations can also be set up in the legal form of a foundation GmbH , foundation AG or foundation association .
In contrast to a corporation , which is characterized by its membership structure, and an institution that has users, foundations with legal capacity are characterized by their assets and may refer to beneficiaries, so-called beneficiaries . Tax law , most foundations are considered taxable entity and are therefore subject to, among others, the corporate income tax if they are not as charitable are exempt foundations thereof. Foundations can be set up for any legal purpose that does not jeopardize the common good (to be strictly distinguished from public benefit for tax purposes ) ( (2 ) BGB ).
The foundation law of the federal and state governments, but especially tax law, impose a number of regulations on founders and foundations, including some that are open to interpretation and discretion by the authorities involved. Nonetheless, the character of endowment as an act of its own regulation has been preserved since the early Middle Ages . There are no compulsory model or standard statutes for this purpose. The creative will of every founder is required in order to exploit the advantages of this instrument of charitable activity. Thorough conceptual preparatory work and committed management are essential.
|Foundation type (selection)||Stock (number)|
|Foundations with legal capacity under civil law||22,743 (as of December 31, 2018)|
|Associated foundations||> 650|
|Corporate foundations||at least 300|
|non-incorporated foundations / trust foundations||20,000 (estimate)|
In 2018 there were 554 newly established foundations under civil law with legal capacity (2017: 549, 2016: 582, 2015: 583, 2014: 691). At the end of 2018, there were around 28 foundations for every 100,000 citizens. North Rhine-Westphalia is the state with the highest number of foundations under civil law with legal capacity (4447 in 2018), followed by Bavaria (4078) and Baden-Württemberg (3398). In the nationwide city ranking according to the density of foundations, Würzburg led the way at the end of 2018 with 96 foundations with legal capacity under civil law per 100,000 inhabitants. The city with the most foundations with legal capacity in absolute terms is Hamburg . 96% of all foundations in Germany pursue charitable purposes. By far the best-known foundation in Germany is Stiftung Warentest . An overview of foundations in Germany is contained in the nationwide directory of German foundations and (only for foundations with legal capacity under civil law) the directories of the respective state foundation supervisory authorities.
Of the more than 21,000 German foundations, 4,000 foundations alone distribute around 4 billion euros annually for the common good. The 30 largest German foundations hold the largest share of this with 880 million euros.
Legal foundation under civil law
A legal foundation under civil law is established by
- the foundation business , i.e. a unilateral declaration of intent by the founder, which can be made among the living or due to death (in a will or inheritance contract ), as well as the
- State recognition by the foundation authority of the country in which the foundation is based ( BGB).
The legal foundation of civil law is regulated in §ff. BGB; Supplementary legal provisions can be found in the foundation laws of the federal states. Through the foundation business, the foundation must receive statutes, which according to BGB must contain at least the following:
- the name of the foundation
- the seat of the foundation
- the purpose of the foundation
- the assets of the foundation
- the formation of the foundation's board of directors
If the foundation is set up - as is usually the case - for charitable , charitable or church purposes, the statutes must contain further information, for example on the type of implementation and the tying up of assets for tax-privileged purposes. The articles of association can also contain further regulations, for example on the formation of further foundation bodies such as a foundation board , supervisory board , administrative board , a board of trustees or on the type of asset management.
The founder can revoke the foundation business until the foundation has legal capacity. If the founder dies after having applied for recognition, the heirs have no right of revocation. If the foundation is recognized, the right of withdrawal of the founder expires. With the recognition, the foundation acquires a right to the transfer of the endowment assets promised in the foundation business.
The transfer of assets to the foundation must be separated from the establishment act ( relinquishment and entry in the land register, GmbH shares by notarial assignment . When a foundation with legal capacity is established upon death, the assets of the estate intended for the foundation are transferred in accordance with the provisions of inheritance law. According to BGB, the foundation is considered to have been created before the death of the founder and can therefore inherit from him.BGB). If a foundation with legal capacity is established during the lifetime of the foundation, only those rights are transferred directly to the foundation for which a declaration of intent is sufficient (e.g. the assignment of a claim). Other assets are transferred in accordance with the respective regulations, land for example by
Minimum capital resources are not prescribed in the foundation laws of the federal states. The BGB itself only stipulates that “the permanent and sustainable fulfillment of the foundation's purpose must appear assured” ((2) BGB). In administrative practice, most foundation authorities require an endowment capital of at least 25,000 euros, and in some federal states even more, especially if the foundation is to be operational itself, i.e. not merely to pass on its income to other non-profit organizations. Only income-generating assets are taken into account, for example, no real estate used by the foundation itself.
A non-profit, legal foundation under civil law is controlled by two state institutions, the tax authority and the responsible state foundation supervisory authority.
A non-incorporated foundation, which is also referred to as an dependent, fiduciary, fiduciary foundation or (if managed by a foundation as a trustee) as a sub-foundation, is set up by a contract between the founder and the trustee (carrier). The founder transfers the foundation's assets to the trustee, who manages them separately from his own assets. If a trustee files for bankruptcy, the foundation assets managed by him can be included in the bankruptcy estate if appropriate precautions have not been taken.
The purpose of the foundation and the other basic stipulations are laid down in statutes , which are part of the contract with the trustee. The foundation often has its own committee that decides on the use of the foundation's funds. Externally, the trustee acts for the foundation, which does not have its own legal personality. The unincorporated foundation is not expressly regulated in the German Civil Code . General civil law applies to them, i.e. above all the law of donation (for the transfer of assets) and the right to order (for the fiduciary relationship ), but primarily the special agreements in the contract between the founder and the trustee.
The non-incorporated foundation is not subject to any official foundation supervision . Nonetheless, an application can be made to the responsible tax authority for recognition of non-profit status. Under certain circumstances, the purpose of the foundation can be changed very easily in accordance with the provisions in the statutes or the foundation can even be dissolved without the approval of a controlling body or an authority being required.
Advantages of a trust foundation can lie in the uncomplicated decision-making, the easier administration and the resulting lower administrative costs.
Organization and finance
In order for a structure like the foundation to exist in the long term, it must be competently represented, managed and administered externally. How this is done depends on the size, the type of realization, the composition of the property and other factors. Founders have always been able to decide whether they wanted to set up their own organization just for this purpose or to entrust their foundation to an existing one. The ownerless foundation with legal capacity has developed from the former option, while the latter is the non-legal or fiduciary foundation.
The legal form in which a foundation is established has consequences for the formal management structure and the responsibility of those responsible, less for practical administration and activities.
As before, the foundation's board of trustees and boards of trustees are mostly volunteers. Only a minority of the foundations have full-time staff. Occasionally, the administration is entrusted in whole or in part to external service providers.
Since there is no "Foundation Register" in the manner of a club or commercial register is, may be in the right-hand traffic only by means of a representation certificate be detected who the foundation outwardly represents . The regionally responsible foundation authority maintains a list of foundations, which, however, has no public faith . Publication and inspection are not standardized. While in Saxony-Anhalt and Berlin, for example, a legitimate interest in inspection must be asserted and anyone in the administrative districts of Baden-Württemberg can inspect, in North Rhine-Westphalia all information is published on the Internet.
For the establishment (technical establishment ) of a foundation with legal capacity, the founder (s ) formally express the will in a foundation transaction to establish a permanent legal foundation for the realization of a specific purpose and to provide this with the necessary funds, i.e. assets, and an appropriate organization , that is, at least one board member . The foundation business requires the - simple - written form, BGB. However, this is not sufficient if the foundation business provides for the transfer of real estate to the foundation. In this case, a notarial certification is required - but only for the release .
The foundation comes into being with the approval (formerly: approval) by the foundation authority.
In the foundation business, an essential part of which is the foundation statutes , the founder (s) determine the purpose for which the foundation is to be established. After the establishment, the foundation is independent of its founder and has no influence, unless the founder ordered the establishment of the foundation in accordance with BGB by death and appointed an executor, whom he has exempted from the restrictions of BGB . The founder can, however, reserve sole and codecision rights or a veto against decisions of the foundation bodies in the statutes. In practice, the founder - which is permissible - also regularly appoints himself as a member of a foundation body or even as a sole director.
It is essential for the foundation that the will of the founder remains binding for the foundation organs at all times or until the foundation expires, in the form in which it is expressed in the statutes. This can lead to the founder himself being bound by his original stipulations in the articles of association, although in the meantime, for example, he may find other purposes more important or another type of purpose more appropriate.
Under German law, the foundation is the only legal institution with which a natural person can make his or her will binding for future generations, even centuries after his or her death. The possibility of influencing a deceased person ends usually 30 years after the death, as to one's will to enforce the second significant legal institution beyond death, the duration testament enforcement is by limited BGB generally to 30 years.
If you want to set up a foundation, it is essential to have assets. The amount of the assets must be sufficient in order to be able to achieve the purpose of the foundation on a permanent and sustainable basis from the income from the assets. In the case of charitable foundations, the establishment of the tax office is followed by an examination, which recently grants charitable status by means of an administrative act if the requirements of charitable law are met. In some federal states, this check is already carried out in the approval process by the state's Ministry of Finance.
Foundations can, but do not have to, be tax-privileged . At the request of the foundation, the tax office recognizes the foundation's tax privileges if the articles of association and actual management meet the requirements of § ff. AO. Non-profit, charitable or church foundations are exempt from most taxes . In the case of the non-profit foundation, the establishment as well as subsequent donations according to Paragraph 1, No. 16, lit. b Inheritance Tax Act (ErbStG) exempted from inheritance or gift tax. Donations ( donations and endowments ) also entitle the donor or benefactor to deduct special expenses . For donations and endowments to legal and fiduciary foundations, there are additional maximum amounts for special expenses deduction compared to donations to other charitable institutions. With the law on the further promotion of civic engagement , which was passed in spring 2007 and came into force retrospectively on January 1, 2007, the maximum amount for endowing foundations, for example, was increased.
Non-profit foundations have no tax advantages. When the assets are transferred to such a foundation, gift tax is incurred ( (1) No. 8 ErbStG). Income is subject to corporation and trade tax. If a foundation predominantly or exclusively favors members of a certain family or several families, it is also referred to as a family foundation. In the case of family foundations, the so-called “inheritance tax” is due every 30 years, which simulates a transfer of assets to two children (i.e. double the tax exemption for children and the corresponding inheritance tax rate). In a sense, the foundation inherits itself. Family foundations are therefore often converted into charitable foundations shortly before the 30-year period expires. This eliminates the inheritance tax. In future, however, the foundation's income will no longer be used for the family, but for charitable purposes.
There is a widespread view that foundations are primarily used “by the rich as a tax-saving model”. It is correct that, for example, inheritance tax no longer has to be paid on assets that have been donated to a charitable foundation . The price for this, however, is that the assets then also belong to the foundation and its income can only be used for the charitable foundation purpose. The founder has nothing more of it materially - even if he can make more or less narrow guidelines for the use that cannot be changed after his death by defining the purpose of the foundation. As far as donations to foundations can be deducted from tax, this means that the state refrains from levying taxes on income and assets that citizens voluntarily make available for a charitable purpose.
The non-profit law allows foundations to use up to a third of their investment income for the "appropriate" maintenance of the founder and his close relatives (children and grandchildren) as well as the care of their memories and their graves (No. 6 AO). Many foundation statutes therefore provide for this possibility. The recipients have to pay tax on such services. You cannot save taxes in this way either. Nevertheless, a foundation always has the function of a solid “employer” in the broadest sense for a closely selected group of employees.
The economic situation
The big institutional foundations are important socio-economic enterprises. As a rule, your assets consist almost exclusively of assets required for business operations; Naturally, they almost exclusively generate income from their work, which means that their services are paid for by the social security agencies, for example. From a business point of view, this constitutes a form of return on investment , but it differs from the generation of a return from non-intended investments, as is usual for development foundations.
Non-profit and benevolent support foundations traditionally fulfill their tasks at least predominantly from the income from profitable assets that the founder provided at the time of establishment or gradually. But it would be wrong to believe that profitable assets must be monetary assets. Old and new foundations often call properties their own, be it houses, forests or agriculture. In addition, there can be works of art, investments in companies, exploitable rights and much more.
However, it is always crucial that the donated assets generate income in some way (interest, rents, leases, dividends, etc.). Contrary to rumors to the contrary, there are no fixed minimum assets. You can donate even with small assets if the purpose of the foundation, the selected legal form and other circumstances result in a plausible concept for sustainable foundation work and the income from the assets is sufficient for a permanent and sustainable purpose according to(2) BGB . The persistent phase of low interest rates is causing more and more foundations financial difficulties as they can no longer generate the necessary investment income.
In the last 30 years a trend has developed that foundations also appear on the fundraising and donation market. Foundations are also increasingly being used as the basis for soliciting endowments, donations, bequests and inheritances. The community and community foundations have also belonged to this group since the 1990s. On the other hand, of course, a new foundation does not have to be set up for every idea.
Types of foundations
Public law foundations
In addition to foundations under private law, there are foundations under public law . In addition to corporations under public law and institutions under public law, these form a type of organization of legal entities under public law . While the demarcation from the corporation is characterized by the lack of members of a foundation, the demarcation from the establishment is controversial in the legal literature. In part, the foundation under public law is classified as a subcategory of the establishment under public law.
Church foundations are a special form of incorporated foundations under civil or - more often - public law. Church foundations mainly serve ecclesiastical tasks and are either established by a church or - according to the will of the founder - should be subject to the supervision of a church body.
Their recognition is carried out by the competent state authority, but the supervision of them is not incumbent on the state, but exclusively by the church authority responsible under church law. In the federal states of Berlin and Hamburg there are no church foundations in this sense; comparable foundations are also subject to state supervision.
Church foundations with legal capacity are also included in the lists of foundations kept by the foundation authorities. One of the first newer foundations of this kind is the Heilig Kreuz Foundation in the diocese of Essen . The Foundation Birthplace of Pope Benedict XVI, founded in 2005, has become widely known . , a church foundation under public law.
Family foundations are foundations with legal capacity under civil law that exclusively or predominantly serve the well-being of the members of one or more specific families , be it by granting gifts (capital foundation ) or by maintaining a set of assets such as companies (establishment foundation). A distinction must be made between company-affiliated and private family foundations, which only manage private tax assets. Here, too, recognition is carried out by the responsible state authority. Supervision only takes place to the extent that it must be ensured that its existence and its activities do not run counter to the common good.
Family foundations are generally not charitable . The contribution of the foundation's assets is subject to gift tax when it is founded and there is also a special inheritance tax, the so-called inheritance tax (see section “Organization and finance”, subsection “Tax relief” above).
Since the foundation reform in 2002 (see(2) BGB), the family foundation has also come into consideration as a legal form for medium-sized companies if the company is to be managed professionally by non-family managers (solving the problem of succession). From the entrepreneurial point of view, further advantages of a company-affiliated family foundation are the defense against liability risks, compulsory portion and profit compensation claims, as well as the minimization of economic disruptive factors, especially in the area of co-determination and the risk of hostile corporate takeovers.
The contribution of business assets or capital shares to the foundation is tax-favored. Family foundations (and also other foundations) are now used as a vehicle for the establishment of other companies, such as the Family Foundation & Co. KG. ( See also: family company that manages assets .)
Private-benefit foundations are the link between the non-profit foundation and the family foundation. For example, if an entrepreneur wants to set up a social foundation for the members of his company, he cannot do so in the form of a charitable foundation, since charitable status requires the support of the general public and not a limited group of people. The private-benefit foundation is not tax-privileged.
Community, umbrella, association and community foundations
Community foundations are increasingly spreading. These foundations are endowed not only by one founder, but by several jointly. Your foundation assets grow primarily through endowments, which can also be managed separately in thematic funds. In addition, they often manage dependent foundations set up by third parties (trust foundations). Many community foundations, for example the Movement Foundation , offer their donors various opportunities for participation and collaboration.
Foundations that accept donations and endowments as well as manage trust foundations are also known as umbrella foundations. If such a foundation model is to be used to financially strengthen an association to which the founding initiative can be traced back and in whose organizational context the foundation is part, we are talking about a composite foundation. Many movement organizations, such as Greenpeace or medico international, have set up such foundations.
Community foundations can be dedicated to specific purposes, such as the German Foundation for Monument Protection or the Cologne High School and Foundation Fund , which takes on the administration of several hundred educational foundations established by private individuals. Foundations that are active for specific cities or regions and promote many different purposes are known as community foundations .
Under corporate foundations mean those who hold shares in companies (for example, Bertelsmann Foundation , Lidl Foundation) or a company itself operate (such as formerly the Carl Zeiss Foundation ). Company-affiliated foundations can also be non-profit , such as the Bertelsmann Foundation or the Possehl Foundation . The distributed income of the company may then only be used for tax-privileged purposes. Such foundations are occasionally used to regulate company succession (see inheritance tax in Germany ). The charitable status of company-affiliated foundations is viewed increasingly critically, especially when - as in the case of the Bertelsmann Foundation, for example - there are close personal ties between the foundation's bodies and the company in which the foundation is a shareholder. In the opinion of critics, the Bertelsmann Stiftung's activity as a think tank providing political advice also raises doubts about the public benefit of this company-affiliated foundation.
Since the foundation reform in 2002, company-affiliated family foundations have also been a legal form alternative for medium-sized companies if the company management is to be placed in the hands of professional managers who are not family members. A company-affiliated family foundation is either a foundation that is registered in the commercial register as a sole trader (corporate foundation ) or that, as a partner in a partnership or corporation , can perform board or management activities and act as a controlling body (shareholding foundation ). In the case of a shareholding foundation (e.g. Schickedanz Holding Stiftung & Co. KG or Vorwerk Elektrowerke Stiftung & Co. KG), the foundation itself can act as a personally liable partner with family members as a limited partner or the foundation itself as a limited partner. In the case of company succession, the involvement of a company foundation as an investment fund is intended to ensure corporate continuity.
The double foundation model, in which a family foundation is linked to a non-profit foundation via a holding company (e.g. limited liability company (GmbH)), is quite common : the capital shares are predominantly held by a non-profit foundation with legal capacity (e.g. 90% capital and 10% Votes to the holding company), the income is used for tax-privileged purposes. A smaller part of the capital goes to a (non-tax-privileged) family foundation (for example 10% capital and 90% votes); The family is provided for from the income that accrues to her. The voting rights associated with the participation in the company (and possibly a disproportionate share of the profit participation rights) are transferred to the family foundation or, for example, a management company. The aim of the construction is to make the company income that is not needed to support the founder and his family available to the common good (and to avoid inheritance tax to a corresponding extent, which can become a considerable burden on liquidity - in the example: 90%). At the same time, the family should retain its influence on the company's business policy. One of the best-known examples of double foundations is that of Robert Bosch GmbH .
Foundation replacement forms
Not every institution known as a “foundation” actually has this legal form. Most party-affiliated foundations in Germany, for example, are organized as registered associations , other significant foundations as non-profit GmbH (gGmbH) , such as the Robert Bosch Stiftung GmbH or the Klaus Tschira Stiftung gGmbH . Foundation structures are simulated using the means of association law or company law. The members or shareholders do not represent their own interests, but act as trustees of the founder's will. The permanence of the assets being tied to the will of the founder is achieved through provisions of the articles of association that make it difficult to amend the articles of association or that require the approval of the founder. These legal forms offer greater flexibility in comparison to a foundation under civil law with legal capacity. In addition, they are not subject to state supervision of foundations .
The establishment of a foundation GmbH takes place according to the rules of the GmbH law (shareholder resolution and entry in the commercial register), the establishment of a foundation association according to the rules of the association law (resolution of the founding members and entry in the association register). Neither the foundation law in the BGB nor the foundation laws of the federal states apply to these other legal forms called foundations, not even by analogy.
It should be noted that the non-profit foundation GmbH, if the statutes are structured accordingly, similar to a foundation, can guarantee permanent asset retention: The GmbHG does not contain any right of termination and the exclusion of severance payments for departing shareholders and the free redemption of GmbH shares are possible; However, the foundation GmbH requires corresponding shareholders, while the foundation is in the true sense separate from members or shareholders. Well-known examples of a non-profit foundation GmbH are the Robert Bosch Stiftung GmbH, which is dedicated to public health care, and the FAZIT-STIFTUNG Gemeinnützige Verlagsgesellschaft mbH , which is involved in the FAZ and supports science and education, among others through the Granting of scholarships for journalism training.
The largest foundations (including alternative forms) in terms of foundation assets and payments or total expenditure in Germany are:
The information on the foundation's assets should be treated with a certain degree of caution: for example, the Bertelsmann Stiftung's assets include a stake in Bertelsmann SE & Co. KGaA amounting to 76.9% of the share capital. As Bertelsmann SE & Co. KGaA is not listed on the stock exchange, the value of the shares cannot be determined without evaluating the company and is therefore only included in the Federal Association's statistics with the book value.
Other large foundations
Other large billion-dollar foundations operating in Germany are the Siepmann Foundation of the founder Karl Albrecht ( Aldi Süd) with affiliated Oertl Foundation and Elisen Foundation , the Markus Foundation of the founder Theo Albrecht (Aldi Nord), the Dieter Schwarz Foundation of Founder of the same name of the Schwarz Group ( Lidl and Kaufland ), the largest retail group in Europe, the DM- Werner Foundation , into which the founder Götz Werner contributed his company shares, or the Dussmann Foundation, which controls the Dussmann Group . In April 2015 it became known that Michael Otto and other family members had or will transfer a large part of their majority stakes worth several billion euros in the Otto Group or ECE Projektmanagement to a new foundation.
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