The Foundation Act 2012 (the "Act") came into force on 1st July 2012. This new legislation allows for the incorporation of foundations in Mauritius and offers flexibility in terms of structuring options.
Foundations are appealing to clients who are in civil law countries and who may not be familiar with the concept of trusts and may be used for, inter alia, private wealth management and estate planning by high net worth individuals.
A Mauritian foundation is an incorporated vehicle capable of carrying on or undertaking any business or activity in or outside Mauritius, entering into any transactions and holding assets. A foundation may be set up to achieve both charitable and non charitable objects and can be either to benefit a person or class of persons or to carry out a specified purpose. It acts through its council, which is the body charged with the administration of the foundation's assets and the attainment of its objects.
It may also, upon application to the Financial Services Commission of Mauritius, hold a global business licence and may elect to be tax resident in Mauritius to benefit from the network of tax treaties which Mauritius has with 36 countries.
The Key Features:
The key features of the Act specifically relate to the following areas:
> Registration of a Foundation
> The Founder
> The Foundation Council
> The Beneficiaries
> The Secretary
> The Protector
> The Charter
> Articles of Foundation
> Termination of a Foundation
> Foundations can be set-up intervivos (by charter) or by will;
> They may be set-up to benefit persons, class of persons or to carry out a purpose which may be charitable, non-charitable or both;
> Foundations would have to be managed by a Foundation Council which should comprise of at least one member ordinarily resident in Mauritius but which does not need to be licensed;
> They would require a secretary in Mauritius which would need to be a licensed by the Financial Services Commission;
> They would need to have a registered office in Mauritius;
> When registered Foundations would have separate legal personality;
> They would need to keep proper books of accounts and keep its records in Mauritius at its registered office;
> Where the founder and all the beneficiaries are non resident (or if set-up for a purpose, that purpose is being carried out of Mauritius) it would be exempt from tax in Mauritius.
> The Bill preserves confidentiality in respect of information relating to foundations which should be kept confidential and not used or disclosed otherwise than provided by the Bill
> The Bill allows for established under the law of another State to redomicile in Mauritius
> The trust has been around for centuries, foundations are a relative newcomer to the scene
> The trust can undertake commercial and non-commercial activity, certain jurisdictions do not allow Foundations to undertake a commercial activity
> Foundations benefit from legal personality and can hold assets, as opposed to trusts
> Ultimately, both have their advantages and weaknesses and both have probably equal worth
> Trusts would probably continue to be preferred by clients from common law jurisdictions but foundations would certainly be preferred by those from civil law jurisdictions
> Interestingly enough, they can be used together in the context of an estate plan, where there is a need for example to have an orphan structure; for example, it is common to use a Private Foundation to hold the shares of a Private Trust Company (PTC).