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Archive:Board meeting 2019-04-30
- present: Axel, Christian, Gertjan, Marina, Richard
- absent: Simon (reason given)
- guest: Florian Effenberger (founding member of The Document Foundation)
Christian was the only board member without a good excuse ;-) and therefore volunteered to take the minutes.
When reading the minutes, you'll notice that they cover lots of legal details. Please keep in mind that I'm not a lawyer.
Florian Effenberger told us a lot about foundations (especially The Document Foundation / TDF) and answered our questions.
Comparison of foundation and association
We looked at two options that can be used in Germany:
- a foundation (german "Stiftung") and
- an association (german "eingetragener Verein / e. V.")
An association is something you can "just setup" if you have 7 people who agree on the statutes.
Template statutes (for associations and foundations) are available from court for download. This makes sure you are compliant to current legislation.
In comparison, setting up a foundation is much harder. Besides people and statutes, you need a capital stock which gets "locked" (trademarks can be part of the capital stock). TDF has a capital stock of 50 k€, nowadays the authorities ask for 100 k€. This capital stock has to be kept, you can't spend it. Also, setting up a foundation takes more time.
In an association, members can change lots of things, the dedication etc. quite easily by voting on changed statutes by voting on changing statutes with a qualified majority (usually > 66% or 75%). In theory, lots of people from one company could join the association and then change its objective.
A foundation is more stable, changing the objective / main goal is intentionally hard. This also means that the statutes shouldn't be written too narrow. They should match future growth, and should be as open as possible (who knows if Linux is still named Linux in 10 years? Better write "free/open operating system"). As an example, a goal of "make a linux distribution" would no longer match openSUSE because OSEM, jangouts etc. don't fit into that description. Obviously we should think twice before setting things into stone.
For reference: the statutes of the TDF are available at https://www.documentfoundation.org/statutes.pdf
To make the comparison even more interesting, an association could have the option or goal to setup a foundation in its statutes.
Things foundation and association have in common
There is no difference between association and foundation regarding tax and charitably status. Both need to ask the tax office for charitably status at the beginning. The tax office checks the statutes and also requires regular reports every three years. In case of a foundation, the foundation authority requires annual reports.
Germany has a catalog of charitably reasons, for example supporting education and international attitude (§52 Abgabenordnung).
Both are not set-up for profit reasons, so piling up money isn't allowed, it has to be spent according to the foundation's or association's goal. However, it's possible to keep the money if you have a plan what you'll do with it (a high-level overview like "marketing", "infrastructure" is ok, no details needed for the tax office). There's a breakdown between project costs (2-6 years) and recurring costs (staff, rent etc.). A "free reserve" (10% of the income) can be used to build a "backup" if for example donations decline to avoid running out of money and having to shutdown instantly.
Both foundation and association are split into two areas:
- ideal operations (german "Idealbetrieb") - everything covered unter the charitably, for example creating a linux distribution and running a conference to educate our members and visitors. This part receives donations and can write tax-deductable donation receipts.
- a business part (german "Wirtschaftsbetrieb"), for example selling t-shirts or advisory board fees. This part can write invoices with VAT applied (and can deduct VAT from the invoices received for that area)
- sometimes there's a mix between both (german "Zweckbetrieb") - a business that serves the charitable purpose
In worst case, board members can be personally liable (for example for wrongdoing or not filing insolvency). Insurances for most of these risks are available.
Having employees is possible. Regulations are similar to being a company. There's an additional limitation that forbids overpayment.
The Document Foundation
Reasons for setting up TDF included the will to become independent from one single corporate sponsor, holding assets like trademarks and collecting donations in an independent entity.
Before TDF was setup as a german foundation, lots of foundation options in different countries were checked. Besides the legal differences, having active contributors in a country was considered. It turned out that there are even big differences inside a country. In Germany, the foundation authorities in Bavaria were not as open for TDF's rather new model than Berlin, while both gave valuable feedback on the statutes. TDF has a strong membership element compared to other foundations.
After the decision to setup a foundation was made, TDF collected money in a "fundraising challenge". The goal was to get 50 k€ in two months, they got it in 8 days. Most donations came from lots of private donors and small entities world-wide, not many companies with big amounts of money. TDF also had the fallback option to setup a foundation in the UK (with less money) in case the fundraising wouldn't reach its goal.
At the beginning, the TDF was run with lots of volunteer work. Florian strongly recommended to have an external lawyer and an external accountant, and to outsource / pay someone for "boring" daily administration stuff. In the meantime, TDF growed and has some employees.
TDF is always fundraising and gets lots of small donations which sum up. Displaying the "please donate" page while people wait for their download turned out to make a massive difference in donations.
TDF also gets money via the advisory board fees. The majority of financial donations comes from individual donors, while companies often contribute valuable employee time and code.
The board hopes to have a rough idea if foundation or association makes more sense within a week, and will discuss it with Thomas Di Giacomo (SUSE President of Engineering, Product and Innovation) during the face to face meeting in the days before oSC.