According to article 1(4) of the transitional provisions, LGBl. 2008 No. 220 in the version of LGBl. 2009 No. 247, the members of the foundation council were required, within 12 months after the entry into force of the new foundation law, to report to STIFA those foundations subject to supervision pursuant to the new provisions. Since expiry of the transitional period in April 2010, that legal obligation to report no longer applies, and notification of the registration or new formation of a common-benefit foundation subject to supervision is made to STIFA directly by the Commercial Register by transmitting a register extract.
In practice, however, the foundations often like to transmit a notification directly to STIFA concerning the registration or new formation of a foundation subject to supervision, which is why STIFA continues to make a template available for submitting a notification to that effect.
According to § 27(1) Art. 552 § … PGR, each foundation subject to STIFA supervision is required to have the court appoint an audit authority fulfilling legally defined criteria concerning qualification (article 191a(1) PGR) and independence (§ 27(2) Art. 552 § … PGR).
For common-benefit foundations, § 27(5) Art. 552 § … PGR provides the possibility of exemption from the obligation to appoint an audit authority. An application to this effect may be submitted to STIFA. Articles 5 and 6 of the Foundation Law Ordinance (StRV), LGBl. 2009 No. 114, provide more detail concerning the prerequisites for exemption. Exemption is primarily granted to foundations with a low amount of assets (less than CHF 750,000) or foundations with an investment policy and type of appropriation that permit supervision by STIFA.
In its fact sheet on exemption from the obligation to appoint an audit authority for common-benefit foundations subject to supervision, STIFA provides further details concerning the exemption. In particular, an annual abridged report to STIFA is required from foundations exempt pursuant to article 6(2)(b) StRV. Foundations exempt due to a low amount of assets are not required to submit a report to this effect, although all foundations have the same active reporting obligation as soon as the foundation no longer meets one or more of the prerequisites for exemption. For all exempt foundations, STIFA meets its legal audit obligations by carrying out periodic audits on site (see explanations in the fact sheet).
According to § 29(3) Art. 552 § … PGR, STIFA itself carries out supervision of common-benefit foundations if they have been exempted from appointing an audit authority pursuant to § 27(5) Art. 552 § … PGR. The audit covers the period from the last audit or from 1 January 2009 (or from the time the common-benefit purpose was established) until the end of the previous year. The act of foundation must be accompanied by the foundation deeds and resolutions of the foundation council as well as asset statements, bank and custody account statements, and account detail records for the years audited. The audit is conducted using an audit template. The letter of representation must include the legally valid signature of the foundation council.
To prepare the audit by STIFA, the audit template and the letter of representation may be downloaded as Word files via the following links.
According to § 21(1) Art. 552 § … PGR, STIFA verifies the accuracy of the deposited notifications of formation and amendment. For this purpose, information may be demanded from the foundation, and the foundation documents may be inspected through the controlling body (§ 11 Art. 552 § … PGR) or, if no such body has been set up, through an authorised third party.
If there is no reason for objection, it is sufficient for the controlling body/third party to provide written confirmation that the foundation is not pursuing an illegal or immoral purpose and is not subject to the obligation to register and/or STIFA supervision. If the verification indicates that the notification of formation or amendment is inaccurate, this must be noted accordingly, and duplicates or copies of the files must be drawn up and handed over to STIFA.
Under the old law until 31 March 2009, private-benefit foundations not subject to an obligation to register had to deposit their articles with the Commercial Register upon formation. The deposition itself was merely a declaratory act, not a constitutive act as is the case for the registration of a foundation subject to the obligation to register, which obtains legal personality only upon entry in the Commercial Register. Instead, the private-benefit foundation not subject to an obligation to register was constituted already with the transaction establishing the foundation, thereby obtaining legal personality already upon issuance of the foundation deed and fulfilment of the formal requirements.
Entry into force of the new foundation law on 1 April 2009 did not change the principle that private-benefit foundations are not subject to an obligation to register and that these foundations obtain legal personality already with the declaration of establishing the foundation. What has changed, however, is the model of deposition itself, which according to the new foundation law is no longer tied to deposition of the articles of the foundation, but rather to deposition of a “notification of formation” upon formation of a private-benefit foundation not subject to the obligation to register.
According to § 20 Art. 552 § … PGR, such notification of formation must be deposited with the Commercial Register within 30 days following formation, for the purpose of monitoring the obligation to register and prevention of foundations with an illegal or immoral purpose as well as for preventing the circumvention of possibly required supervision. The notification of formation must contain information about the foundation as enumerated in the law itself. If information contained in the notification of formation changes, a notification of amendment must be deposited again within 30 days. On the application of the foundation, the Commercial Register issues an official confirmation of each deposition of a notification of formation or amendment.
The new deposition model has a multilevel control system based on confirmations of the accuracy of information by representatives of qualified professional groups. Penal provisions for omissions and false confirmations (§ 66 Final Heading of the PGR) also exist.
Article 1 of the transitional provisions of the new foundation law provides for a gentle transformation of already existing foundations to the new deposition model. Every existing foundation must, when the first change of circumstance occurs that would require a notification of amendment under the new law, submit a first report to the Commercial Register containing the information required for a notification of formation (“notification of transformation”).
In practice, implementation of this transitional provision also allows the precautionary submission of a notification containing all the information required for a notification of formation even without any change of circumstance, for the purpose of transforming the existing foundation to the new deposition model.
Once a “notification of transformation” for a foundation not entered in the register under the old law has been submitted to the Commercial Register, article 1(3) of the transitional provisions provides that surrender of the foundation documents deposited with the Commercial Register may be requested.
The surrender may be requested immediately or at a later time and is so far free of charge. The person collecting the deposited foundation documents must expressly prove legitimation and be capable of providing a legally valid signature for the acknowledge of receipt. The website of the Commercial Register contains a template for authorisation. Without explicit authorisation, the deposited documents cannot be handed over (see article 955a PGR).