A foundation differs from a Limited Liability Company, because its focus cannot be the pursuit for profit. In addition, it has no shares and it cannot distribute its equity to its founders. Moreover, it focuses on social or ideal goals and it is possible to incorporate it within a day, if necessary. Under Dutch Law, there is only one type of a foundation. However, the legal type has various applications, which to some extent influence the set-up of the foundation and the contents of the Articles of Association. A Dutch foundation has a board of directors but cannot have any members (as opposed to an association).
Formation of a Dutch foundation
One requires a deed of incorporation for its formation. That being the case, you will need the services of a Dutch public notary. One or more individuals or legal entities can set up a foundation. Thus, a Limited Liability Company can also be the founder of a Dutch foundation. The deed of incorporation needs to contain the information of the founders, as well as the name of the foundation and its purpose. Afterward, you must register the foundation at the Dutch Chamber of Commerce.
Holding assets for the risk and account of third parties
A foundation may also be set-up for the purpose of holding certain assets for the risk and account of third parties, without the issuance of depositary receipts. Those assets don’t only include shares, but other assets, as well. Additionally, it is possible to sell or inherit the contractual claim of the person towards the foundation. The foundation holds the assets for the risk and account. This use of the foundation is usually seen as temporary. Therefore, it would be possible to “convert” this set-up in a voting trust foundation somewhat later.
Voting trust foundation (in Dutch: STAK)
Many entrepreneurs in the Netherlands use a foundation to affect a concentration of voting rights on shares. Moreover, the foundation holds the legal title of those shares. Meanwhile, the economic benefit attaching to those shares remains for the risk and account of third parties. You can also use the depository receipt to split legal and beneficial ownership of paintings, work of art, patents, books, etcetera.
The shares held by the Dutch foundation (STAK) may either be shares in a Dutch legal entity, or in a foreign legal entity. However, this requires that company law of that foreign jurisdiction accepts such split between economic ownership and legal title. In exchange for the acquired shares, the STAK issues depositary receipts:
Depositary receipts reflect the shares, except for the voting rights. If there is a distribution of profits by the company whose share are held by the foundation, it shall immediately forward these distributions to the holders of depositary receipts. Sometimes, this might occur with a small deduction for costs incurred by the foundation. For tax purposes, the STAK is usually considered transparent. The depositary receipts may be sold and transferred by the depositary receipt holders, usually subject to transfer restrictions. The STAK usually acquires shares after the incorporation of a company in exchange for depositary receipts. However, it may also act as incorporator itself and grant the depositary receipts somewhat later to the persons for whose risk and account the incorporation took place.
A family foundation is usually created to provide for material needs of members of a certain family. Therefore, funds and/or assets (such as shares or real estate) are transferred to the family foundation. Furthermore, the foundation may distribute (the proceeds of) these assets among the family members. This needs to be in accordance with the wishes of the persons who instigated to set it up. Under Dutch law, a foundation can’t have the objective to make distributions to neither persons who take part in one if its corporate bodies, nor to other persons or legal entities. An exception to this would be that these distributions have a non-commercial or social character. However, in practice, the settlor can circumvent this rule. Therefore, the settlor makes a donation to the Dutch foundation, under the obligation that it makes distributions to certain beneficiaries. You need to designate those beneficiaries in a letter of wishes.
Charity foundation or trust
You can also use a foundation for charity. As discussed, Netherlands legally employ a broad definition of a foundation as a non-profit institution. Practically, however, the goals and applications of the foundation might differ. A trust, where the focus is the benefit of others, is therefore considered as a charitable foundation.If your foundation is a trust, it is meaningful to obtain an ANBI-status (in Dutch: Algemeen Nut Beogende Instelling). This means the trust qualifies for tax benefits. If it is committed to charity for 90%, it can be considered as ANBI . Then, there is no taxation for inheritance and gifts (granted that you use the inheritance or gift for charity purposes) and refund of energy tax. Furthermore, donors are able to deduct the donation of their taxable income or corporate income tax. This tax regime, designed for non-profit end charitable activities, makes The Netherlands a very interesting country to establish a charitable foundation.
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