The case
An experienced German foundation consultant and foundation manager has claimed that Benko reorganised the private foundation in 2017 to protect his assets. While doing so was not dishonourable, it proved to be far-sighted. “Companies, be they large or small, can get into trouble, and that is why owners should put something by for a rainy day, just like normal savers,” states the expert. “The family foundation is a possible structure that survives the chaos of insolvency and protects the family’s assets against possible claims.” Put in simple words: A foundation is an independent estate, e.g. a charitable foundation that serves philanthropic purposes, for example – or be for private benefit and the economic provision of the founder and their family as well as future generations. Foundations benefit from statutory asset protection. Experts also speak of an “institutionalised family member with a perpetual fiduciary obligation”.
The commentary
Every foundation has a founder, one or more beneficiaries, an (external) board of directors, a charter and a foundation purpose. The articles of association of a foundation, the contribution, the beneficiaries and much more are not recognisable to the public though to the authorities. “This also applies to the Benko family foundation,” states an expert. The Board of Directors, currently Markus Mühlberger and Karin Fuhrmann, are known. The Signa manager and the tax consultant specialising in real estate have been close confidants of Benko for years. Foundation law differs slightly from country to country. In Germany, the founder may also be the beneficiary and director of the foundation, but he/she is not permitted to be the sole beneficiary. In Austria, on the other hand, an external board of directors is mandatory, a function often assumed by lawyers. The founders usually approach a person they trust for this purpose. The statutes of private foundations are flexible, which also makes the structure attractive. The foundation model is widespread in Germany, Austria, Switzerland and the Principality of Liechtenstein, for example, but also in the USA and other countries. Foundations serve not only to protect against legal and political risks, but it is also for tax planning, the preservation of family assets and the reduction of administrative burdens for a wealthy family.
