Private foundation

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Chart of a foundation

A private foundation is a legal entity set up by an individual, a family or a group of individuals, for a purpose such as philanthropy or an object legal in the economic operation. The Bill & Melinda Gates Foundation is the largest private foundation in the U.S. with over $38 billion in assets.[1] However, most private foundations are much smaller. Approximately two-thirds of the more than 84,000 foundations which file with the IRS, in 2008, have less than $1 million in assets, and 93% have less than $10 million in assets.[1] In aggregate, private foundations in the U.S. control over $628 billion in assets[1] and made more than $44 billion in charitable contributions in 2007.[2]

Unlike a charitable foundation, a private foundation does not generally solicit funds from the public. And a private foundation does not have the legal requirements and reporting responsibilities of a registered, non-profit or charitable foundation.

Not all foundations engage in philanthropy: some private foundations are often used for estate planning purposes.

Description[edit]

One of the characteristics of the legal entities existing under the status of "Foundations" is a wide diversity of structures and purposes. Nevertheless, there are some common structural elements that are the first observed under legal scrutiny or classification.

  • Legal requirements followed for establishment
  • Purpose of the foundation
  • Economic activity
  • Supervision and management provisions
  • Accountability and auditing provisions
  • Provisions for the amendment of the statutes or articles of incorporation
  • Provisions for the dissolution of the entity
  • Tax status of corporate and private donors
  • Tax status of the 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.

Common law[edit]

The following foundations are set up under common law legal systems:

Bahamas[edit]

Foundations were first introduced in The Bahamas in December 2004 following the Foundations Act. [1]

USA[edit]

A private foundation, in the United States, is a charitable organization described in the Internal Revenue Code by section 509.[3] A private foundation is necessarily a 501(c)(3) exempt organization (or a former such entity). It is defined by a negative definition: by what it is not. A private foundation is not a public charity, as described in section 170(b)(1)(A) (i) through (vi). Neither is it a section 509(a)(2) organization, nor a supporting organization.[4] Private foundations are subject to 2% excise taxes found in section 4940 through 4945 of the internal revenue code.[5] Once a charity becomes a private foundation, it retains that status unless it follows the difficult termination rules of section 507.

Civil law[edit]

The following foundations are set up under civil law legal systems:

Austria[edit]

The Austrian Private Foundation (Privatstiftung) was last reformed under the Private Foundation Act in September 1993.


Canada[edit]

In Canada the Canada Revenue Agency is a branch of the Canadian government which regulates all foundations. Under Canadian law, since 1967, a private foundation is controlled by a single donor or family through a board that is made up of a majority (more than 50%) of directors at non-arm’s length. It is a legally registered charity with the Canada Revenue Agency. A public foundation is governed by a board that is made up of a majority of directors at arm’s length. A private foundation is not allowed to engage in any business activity, but it can operate its own charitable program.

Canada Revenue Agency designates the application as a “charitable organization,” a “public foundation,” or a “private foundation,” depending on its structure, its source of funding and its operation. The Income Tax Act requirements are different, depending on the type of charity.(Canada Income Tax Act, R.S.C. 1985 (5th supp.) c. 1, para. 149.1(4)(a))

Liechtenstein[edit]

The Liechtenstein Family Foundation (Stiftung) was first introduced in 1926.

Mauritius[edit]

The Mauritius Foundation was introduced following 'The Foundations Act' of 2012.

Netherlands[edit]

A foundation in the Netherlands (Stichting) is a legal person created through a legal act. This act is usually either a notarised deed (or a will) that contains the articles of the foundation which must include the first appointed board. No government authority is involved in the creation or authorization of a foundation. It acquires full legal capacity through its sole creation. A foundation has no members and its purpose must be stated in its articles, using capital dedicated to such goal. The foundations are defined in the Dutch Civil Code (Burgerlijk Wetboek), Boek 2 Art 285-304. It is not necessary in the Netherlands that a foundation serves a purpose of general interest, but its official goal cannot include making payments to anybody, except for charitable causes. A foundation is governed and represented by a board that is responsible for the foundation's administration. The board does not have a requirement for specific number of members.

Art. 2:289 of the Civil Code establishes that all foundations must be registered in the Register of Commerce or "Kamer van Koophandel". Commercial activities are allowed if they are within the purpose of the foundation and are taxed. Board members can be held liable for the foundation, civilly as well as criminally.

The Dutch Tax Service can declare an institution to be an "institution for general benefit" (algemeen nut beogende instelling, ANBI), with tax benefits. Often, but not necessarily, this is a foundation. Conversely, not every foundation qualifies.

Examples of foundations:

Netherlands Antilles[edit]

Foundation legislation was last reformed in 1998, giving rise to the Netherlands Antilles Private Foundation (Stichting Particulier Fonds).

Nevis[edit]

The Nevis Multiform Foundation was first introduced in 2005.

Panama[edit]

The Panama Private Interest Foundation was first introduced in 1995, modelled on the Liechtenstein Family Foundation.

Saint Kitts[edit]

The Saint Kitts Foundation was introduced following the Foundation Act of 2003.

Seychelles[edit]

The Seychelles Foundation was introduced following the Foundation Act of 2009.

Sweden[edit]

A private foundation in Sweden (Stiftelse) is formed by a letter of donation from a founder donating funds or assets to be administered for a specific purpose. A private foundation may have diverse purposes, including but not limited to collective, familiar, or the purpose of passive administration of funds. Normally, the supervision of a private 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 private foundations in Sweden are those that regulate foundations in general: the Foundation Act (1994:1220) and the Regulation for Foundations (1995:1280).

See also[edit]

References[edit]

  1. ^ a b c National Center for Charitable Statistics
  2. ^ Foundation Center
  3. ^ 26 U.S.C. § 509
  4. ^ IRS webpage, which defines private foundations
  5. ^ Excise taxes on private foundations