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[edit] Preamble

A legal entity is necessary to bundle liabilities, and to increase professionality towards our partners.

DC15 is not an individuals' effort, but that of a group, an entity. Therefore, most of the so-called Personengesellschaften (KG, Gbr, …) are not an option.

Furthermore, I think we should strive to make it a non-profit entity, because of the following two benefits:

  • we can collect tax-deductible donations, which hopefully means more money to us;
  • we don't have to pay taxes on sales or profit, mainly because all our profit would have to be used towards a charitable cause, e.g. Free software in Germany.

Even though we have enough time for this, we must also consider the possibility that the tax office does not grant us the required charitable status, in which case we'll be in the same position as and we should pay extra care into making sure the budget includes tax payments and we don't finish with a huge surplus.

Basically, the choice for legal entity is between that of a corporation and that of an association.

Germany allows for charitable corporations, such as the gAG, gGmbH/gUG, as well as plenty other forms (the lowercase 'g' stands for "gemeinnützig", i.e. charitable). However, realistically speaking, anything other than a GmbH/UG (i.e. "Ltd.", "LLC"…) will be *way* over the top and too complex to set up. For those who don't know: a UG is identical to a GmbH except it needs less funds to launch and there are slightly different rules governing these funds and they way they are payable.

On the other hand, there's the non-profit association, called "Verein", mostly abbreviated "e.V." ('e' is "eingetragen", i.e. registered).

[edit] Differences

Let's compare the two candidates, but only looking at their differences. They are both legal entities ("juristische Person") and the charitability is given for both. Even the process for obtaining charitable clearance from the tax office is the same.

Criterion gGmbH/gUG Verein
Capital requirements
  • gGmbH: Min. 25.000 € equity, payable in full (in this case)
  • gUG (haftungsbeschränkt): Min 1 € (at the cost of potentially losing credibility towards contractors)
Structure Shareholders appoint management, regular contracts. Certain key competencies remain with the shareholders. Members' assembly vote board for fixed period. Certain key competencies remain with the members' assembly.
Representation Represented by the management Represented by the board
Formalities Shareholder meeting required once a year (can be done via e-mail) General members' meeting obligatory according to bylaws
Accounting, annual report
  • Accounts have to be maintained
  • Balance sheet must comply to HGB-standards
  • Annual report can get complex
  • Accounting is not required
  • Annual report simplified on cash basis accounting
Tax declaration Required Likely, but there is a chance of not having to do that
Foundation At least one shareholder, one manager 7 people
Costs Can reach 1.000 € 100 € maybe?
Change of shareholders Notary required N/A (members can be trivially changed, but minimum 3 have to remain)
Liability Capped by registered capital Capped by available funds
Personal liability Management, deliberation and carelessness Board members, deliberation and gross negligence only
Insurance D&O insurance, can be expensive ca. 300–500 €/year for liability incl. D&O

[edit] Comparison

Initially, I suggested going with a gGmbH, for two reasons:

  1. I created two gGmbHs in March and will do another one in April, and I could have just kept going… I also have experience with associations, but never created one (though I am working on a second one at the moment).
  2. It would be a charming way to bind a Debian contribution to DC15, because those 25k need to come from somwhere.

However, after talking to a few people, I now agree (with most people) that the association makes more sense. Here's why:

gGmbH Verein
  • Professional appearance
  • Simplified fiscal processes
  • Stringent tax/fiscal requirements
  • Founder == shareholder == source of money
  • Higher costs to create
  • Might not be an acceptable contractual partner
  • Seven people required to create, and three must remain members

In both cases, we need to ensure that we do not assume commercial business activities ("wirtschaftlicher Geschäftsbetrieb"; at least not exceeding gross surplus of 30.678 €), else we end up having to pay corporate and business taxes ("Körperschaft-", "Gewerbesteuer").

Also, in both cases, we need to name an "Endbegünstigter", which must itself be a non-profit or public entity that shall receive all assets at the time the association or corporation is terminated. This destination entity must be similar enough to our own purpose for the tax authorities to grant non-profit status.

Another question to consider is the process of foundation:

In the case of the association, it's as simple as seven people sitting together and writing up minutes about the foundation meeting, which includes deciding on the bylaws they give themselves, and appointing the board.

In the case of the corporation, the person (legal or natural) founding the corporation also has to provide the registered capital, and becomes shareholder with the highest powers in the corporation. Since the money actually has to be transferred from future shareholder to corporation and cannot be claimed back until the corporation is closed, this would raise a number of questions and complicate things, for instance if SPI Inc. would become shareholder across borders.

[edit] What about FFIS e.V.?

The FFIS e.V. is the legal entity accepting donations for Debian in Germany. Obviously, it could make sense to involve them. However, their website does not give off the impression that the association is still active (missing minutes since 2006). I have contacted the board of the association and asked for clarification (2014-03-31, also on debian-project.

[edit] What about FSFE e.V.?

This is a possibility to be examined. However, we would need to make sure to stay independent because we don't really want to be subjected to bureaucracy in this rather large organisation.

[edit] Conclusion

All things considered (price, process requirements, liability), I think an association in combination with appropriate liability insurance makes more sense for our cause.

One thing to consider is that post-DC15, the association could either be closed, or renamed/repurposed to become a Debian Germany representation.

[edit] Bylaws

A first draft of the bylaws is available in the debconf-data/dc15 repository, subdirectory verein.

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