In a recent decision (OGH December 20, 2018, 6 Ob 195/18x), the Supreme Court commented for the first time on the question of the application of the ban on returning deposits to a beneficiary of a private foundation involved in the company.

 

In decision 6 Ob 195/18x, this legal question was not finally clarified because the application of the ban on returning contributions to the beneficiary was primarily justified by their former status as a partner. Nevertheless, the OGH’s statements provide important clues for resolving the practice-relevant and as yet unresolved legal question of whether and under what conditions beneficiaries of a private foundation participating in the company can be subject to the ban on returning contributions.

In 2009, a traditional family business in the furniture industry granted the beneficiaries of a private foundation involved in the family business and their spouses free, lifelong living rights to a penthouse in a furniture store in Vienna. The beneficiary originally held a stake in the family business and transferred this stake to a private foundation in 1996.

 

The private foundation held a 51% stake in the family business in 2009. The purpose of the private foundation was to “support the respective beneficiaries, in particular by providing cash benefits”.

 

The beneficiary was a member of the foundation advisory board and was entitled to appoint the foundation board. In fact, she had great influence on the private foundation and made all or a large number of decisions.

 

In addition, the beneficiary’s spouse was the managing director of the family business in 2009 and the beneficiary herself was a member of the supervisory board.

You can read more about this in our current newsletter.

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