Ley para Fundaciones (En Inglés solamente / Only in English)
PANAMA LAW No.
25
June 12, 1995
"Whereby Private Foundations are regulated"
THE LEGISLATIVE ASSEMBLY
DECREES:
Article 1.
One or more natural or juridical persons by themselves or through
third parties, may create a private foundation in accordance with
the provisions set forth in this law. For such purposes, the endowment
of a patrimony exclusively dedicated to the objectives or purposes
expressly stipulated in the foundation charter is required. The
initial patrimony may be increased by the creator of the foundation,
hereinafter called the founder, or by any other person.
Article 2.
Private foundations shall be governed by the foundation charter
and its regulations, as well as by the provisions of this law and
other legal or regulatory provisions that may be applicable. The
provisions of Title II of Book I of the Civil Code shall not apply
to these foundations.
Article 3.
Private foundations shall not be for profit. However, they may carry
out mercantile activities in a non-habitual manner or exercise the
rights deriving from titles representing the capital of mercantile
corporations that make up the patrimony of the foundation, provided
that the economic results or proceeds of such activities be dedicated
exclusively for the purposes of the Foundation.
Article 4.
Private foundations may be constituted to become effective at the
time of constitution or after the death of its founder, by anyone
of the following methods:
a) Through a private document, executed by the founder, whose signature
must be authenticated by a notary public at the place of constitution.
b) Directly before a notary public at the place of constitution.
Whichever may be the method of constitution, it must comply with
the formalities established in the present Law, for the creation
of foundations.
In case of a foundation being created either by public or private
document, to have effect after the death of the founder, the formalities
stipulated for the execution of testaments shall not apply.
Article 5.
The foundation charter shall contain:
1. The name of the foundation, expressed in any language with characters
of the Latin alphabet, which shall not be equal or similar to that
of a foundation previously existing in the Republic of Panama, 80
as to avoid confusion. The name must include the word "foundation"
to distinguish it from other natural or juridical persons of a different
nature.
2. The initial patrimony of the foundation, expressed in any currency
of legal tender that in no case shall be less to a sum equivalent
ten thousand Balboas (B/10,000.00) =U.S. Dollars .
3. A complete and clear designation, of the member or members of
the Foundation Council, to which the founder may belong, including
their addresses.
4. The domicile of the foundation.
5. The name and address of the Resident Agent of the foundation
in the Republic of Panama, which shall be an attorney or a law firm,
who must countersign the foundation charter prior to its registration
at the Public Registry.
6. The purposes of the foundation.
7. The manner in which the beneficiaries of the foundation shall
be designated, among which the founder may be included.
8. The reservation of the right to amend the foundation charter
whenever deemed convenient;
9. The duration of the foundation.
10. The destination to be given to the assets of the foundation
and the method of liquidation of its patrimony in case of dissolution;
11. Any other lawful clause that the founder may deem convenient.
Article 6.
The foundation charter, as well as any amendment thereto must be
written in any language with characters of the Latin alphabet, and
must comply with the regulations for the registration of acts and
titles in the Public Registry; for which purpose it must be previously
protocolized by a notary public of the Republic (of Panama). If
the foundation charter or its amendments are not written in the
Spanish language, they must be protocolized together with their
(Spanish) translation by an authorized public translator of the
Republic of Panama.
Article 7.
Any amendment to the foundation charter, when permitted, shall be
carried out and executed in accordance with what is established
therein. The respective agreement, resolution or act of amendment
shall contain the date on which it was carried out and the name,
clearly identifiable, of the person or persons subscribing it and
their signatures which shall be authenticated by a notary public
of the place where the document is executed.
Article 8.
Every private foundation must pay a registration fee and an annual
maintenance tax equivalent to those established for corporations
in Articles 318 and 318A of the Fiscal Code. The procedure and method
of payment, the surcharge for late payment, the consequences for
lack of payment and all other complementary provisions of the aforementioned
legal principles, shall be applied to private foundations.
Article 9.
The registration at the Public Registry of the foundation charter
shall bestow upon the foundation juridical personality without the
need for any other legal or administrative authorization. Besides,
the registration at the Public Registry constitutes a means of publicity
before third parties.
Consequently, the foundation may acquire and own assets of any kind,
incur obligations and be a party to any type of administrative and
judicial proceedings in accordance with applicable legal provisions.
Article 10.
Once the foundation has obtained its juridical personality, the
founder or third parties that have pledged to contribute assets
to the foundation, on their own or at the request of any person
with interest in the foundation, shall formalize the transfer to
the foundation of the assets so pledged. When the foundation is
constituted to be effective upon the demise of the founder, it shall
be deemed to have existed prior to such death, in respect to the
donations that he (she) may have made to the foundation.
Article 11.
For all legal purposes, the assets of the foundation shall constitute
a separate patrimony from the personal assets of the founder. Therefore
they cannot be sequestered, embargoed or subject to any precautionary
action or measure, except for obligations incurred, or for damages
caused by virtue of fulfilling the purposes and objectives of the
foundation, on behalf of the legitimate rights of its beneficiaries.
In no case shall the assets respond for personal obligations of
the founder or of the beneficiaries.
Article 12.
Foundations shall be irrevocable, except in the following cases:
a) When the foundation charter has not been registered at the Public
Registry;
b) When the opposite is expressly established in the foundation
charter.
c) For any of the causes of revocation of donations.
The transfers (of assets) made to foundations shall be irrevocable
by whoever has made the transfer, unless the opposite is expressly
established in the act of transfer.
Article 13.
In addition to the provisions of the previous article, when the
foundation has been created to be effective after the demise of
the founder, the latter shall have the exclusive and unlimited right
to revoke it.
The heirs of the founder shall not have the right to revoke the
creation or the transfers, even if the foundation has not been registered
in the Public Registry prior to the demise of the founder.
Article 14.
The existence of legal provisions in inheritance matters in the
domicile of the founder or of its beneficiaries, shall not be opposable
to the foundation, nor shall it affect its validity, or prevent
the fulfilment of its objectives as provided for in the foundation
charter or its regulations .
Article 15.
The creditors of the founder or of a third party shall have the
right to dispute the contributions or transfer of assets in favour
of a foundation, when the transfer constitutes an act of fraud to
the creditors. The rights and actions of such creditors shall prescribe
three (3) years from the date of the contribution or transfer of
the assets to the foundation.
Article 16.
The patrimony of the foundation may originate from any lawful business
and may consist of present or future assets of any nature. Periodic
sums of money or other assets may also be incorporated to the patrimony
by the founder or by third parties. The transfer of assets to the
patrimony of the foundation may be effected by public or private
document. Nevertheless, in the case of real estate, the transfer
must conform with the rules for the transfer of real estate.
Article 17.
The foundation should have a Foundation Council, whose duties or
responsibilities shall be established in the foundation charter
or in its regulations. Unless it be a juridical person, the number
of members of the Foundation Council hall not be less than three
(3).
Article 18.
The Foundation Council shall be in charge of carrying out the purposes
or objectives of the Foundation. Unless otherwise stated in the
foundation charter or its regulations, the Foundation Council shall
have the following general obligations and duties:
1. To administer the
assets of the foundation, in accordance with the foundation charter
or its regulations.
2. Enter into acts, contracts or lawful businesses that may be suitable
or necessary to fulfil the object of the foundation, and to include
in such contracts, agreements and other instruments or obligations,
such clauses and conditions as are necessary and convenient, which
conform to the purposes of the foundation and are not contrary to
the law, to morals, to bonus mores or to public order.
3. To inform the beneficiaries of the foundation of the patrimonial
situation of the latter, as established in the foundation charter
or its regulations.
4. To deliver to the beneficiaries of the foundation the assets
or resources set up in their favour by the foundation charter or
its regulations.
5. To carry out all such acts or contracts which are permitted to
the foundation by the present Law and other applicable legal or
regulatory provisions.
Article 19.
The foundation charter or its regulations may provide that the members
of the Foundation Council may only exercise their powers by obtaining
previous authorization of a protector, a committee or any other
supervisory body, appointed by the founder or by the majority of
the founders. The members of the Foundation Council shall not held
liable for the 1088 or deterioration of the assets of the foundation,
nor for any damages or prejudice caused, when said authorization
has been duly obtained.
Article 20.
Unless otherwise provided for in the foundation charter or its regulations,
the Foundation Council must render an accounting of its activities
to the beneficiaries and, when applicable, to the supervisory body.
If the foundation charter or its regulations stipulate nothing in
this regards, the rendering of accounts must be done annually. If
the accounts 90 rendered are not objected within the term established
in the foundation charter or its regulations, in lack of it, it
shall be deemed as having been approved within ninety (90) days
from the day it was received, for which purpose, record of this
term shall be made in the report rendering the accounts.
Such period having lapsed or the account approved, the members of
the Foundation Council shall be exempted from liability for their
administration, unless they had failed to act with the diligence
of a bonus paterfamilias. Such approval does not exonerate them
before the beneficiaries or third parties having an interest in
the foundation, for damages caused due to gross negligence or fraud
in the administration of the foundation.
Article 21.
In the foundation charter the founder may reserve for himself/herself
or for other persons, the right to remove the members of the foundation
Council, as well as to appoint or add new members.
Article 22.
When the foundation charter or its regulations do not establish
anything in respect to the right to and the causes for removal of
the members of the Foundation Council, these may be judicially removed,
through summary proceedings, for the following causes:
1. When their interests are incompatible with the interests of the
beneficiaries or the founder.
2. If the administration of the assets of the foundation lacked
the diligence of a bonus paterfamilias.
3. If they are convicted for a crime against private property or
public faith. In this case, while the criminal proceedings are in
progress, the temporary suspension of the member on trial may be
decreed.
4. For incapacity or impossibility to carry out the objectives of
the foundation, from the time such causes may arise.
5. For insolvency or bankruptcy proceedings.
Article 23.
The founder and beneficiary or beneficiaries may request the judicial
removal of the members of the Foundation Council. Should the beneficiaries
be disabled or under age they may be represented by whoever exercise
upon them the "patria potestas" or guardianship, as the
case may be.
The judgement of the court decreeing the removal, shall appoint
new members in replacement of the previous ones, who shall be persons
with sufficient capacity, competence and good moral standing to
administer the assets of the foundation, in accordance with the
purposes established by the founder.
Article 24.
The foundation charter or its regulations may provide for the constitution
of supervisory bodies, that may be constituted by natural or juridical
persons, such as auditors, protectors of the foundation or others.
The duties of the supervisory bodies shall be established in the
foundation charter or its regulations and may include, among others,
the following:
1. To ensure the fulfilment of the purposes of the foundation by
the Foundation Council and (to protect) the rights and interests
of the beneficiaries;
2. To demand from the Foundation Council, the rendering of accounts;
3. To modify the purposes and objectives of the foundation, if and
when they become too costly or impossible to fulfil.
4. To appoint new members of the Foundation Council due to temporary
or permanent absence or for expiration of the period of anyone of
them.
5. To appoint new members of the Foundation Council in cases of
temporary or accidental absence of anyone of them.
6. To increase the number of members of the Foundation Council.
7. To approve the acts adopted by the Foundation Council, as indicated
in the foundation charter or its regulations.
8. To guard the assets of the foundation and observe their application
to the uses or purposes stated in the foundation charter.
9. To exclude beneficiaries of the foundation and to add others
in accordance with the provisions of the foundation charter or its
regulations.
Article 25.
The foundation shall be dissolved due to:
1. Reaching the day in which the foundation must terminate, in accordance
with the foundation charter.
2. The fulfilment of the purposes for which it was constituted or
if their fulfilment becomes impossible.
3. Being in a state of insolvency, cessation of payments or due
to bankruptcy proceedings having been declared judicially.
4. The loss or total extinction of the assets of the foundation.
5. Its revocation.
6. Any other cause established in the foundation charter or in the
present Law.
Article 26.
Every beneficiary of the foundation may contest any acts of the
foundation that may damage the rights conferred upon him/her, denouncing
such circumstance to the protector or to other supervisory bodies,
if any; or lacking them, directly promoting the respective judicial
claim, before a competent court of the domicile of the foundation.
Article 27.
The acts of constitution, amendment or extinction of the foundation,
as well as the acts of transfer, transmittal or encumbrance of the
assets of the foundation and the income derived from such assets
or any other act in connection therewith, shall be exempt from all
taxes, contributions, duties, liens or assessments of any kind or
denomination, provided that such assets are:
1. Assets located abroad.
2. Money deposited by natural or juridical persons whose income
is not derived from Panamanian sources nor taxable in Panama for
any reason whatsoever.
3. Shares or securities of any kind, issued by corporations which
income is not derived from Panamanian sources or when such income
is not taxable for any reason whatsoever, even when such shares
or securities be deposited in the Republic of Panama.
The acts of transfer of real estate, titles, certificates of deposit,
securities, money or shares, carried out in fulfilment of the purposes
or objectives, or for the extinction of the foundation, in favour
of relatives within the first grade of consanguinity and of the
spouse of the founder, shall also be exempted from all taxes.
Article 28.
Foundations constituted in accordance with a foreign law may become
subject to the provisions of this law.
Article 29.
Foundations referred to in the previous article that opt to become
subject to the provisions of this Law, shall present a Certificate
of Continuation, issued by such bodies as their internal regime
may call for, and which shall contain:
1. The name of the foundation and the date of its constitution.
2. Data about its registration or deposit (of the charter) at its
country of origin.
3. An express declaration of its desire to continue its legal existence
as a Panamanian foundation.
4. Requirements stipulated under Article 5 of this Law, for the
constitution of private foundations.
Article 30.
The certification containing the resolution of continuation and
other requirements mentioned in the preceding paragraph must have
the following documents attached there to:
1. Copy of the original
act of constitution of the foundation expressing its desire to continue
in Panama, along with any subsequent amendment;
2. A power of attorney granted to a Panamanian attorney to carry
out the necessary proceedings to make effective the continuation
of the foundation in Panama.
The certificate of continuation, as well as the documents attached
thereto referred to in this Law, shall be duly protocolized and
registered at the Public Registry so that the foundation may continue
its legal existence as a private foundation in the Republic of Panama.
Article 31.
In the cases foreseen in Article 26, the responsibilities, duties
and rights of the foundation acquired prior to the change or domicile
or legislation, shall continue in force, as well as the proceedings
already initiated against it or those that the foundation may have
promoted, without being affected such rights and obligations due
to the change authorized by the aforesaid legal provisions.
Article 32.
The foundations constituted in accordance with this Law, as well
as the assets comprising its patrimony, may be transferred or become
subject to the laws and jurisdiction of another country, as may
be provided by the foundation charter or its regulations.
Article 33.
Registrations related to private foundations shall be effected at
the Public Registry in a special section that shall be named "Section
of Private Foundations" The Executive Branch through the Ministry
of Government and Justice shall issue the regulations applicable
to such section.
Article 34.
To avoid the unlawful use of private foundation, all legal provisions
contained in Executive Decree No. 468 of 1994 and any other rule
in force aiming at fighting money laundering derived from drug-trafficking,
shall apply for their operation.
Article 35.
The members of the Foundation Council, of the supervisory bodies,
if any, as well as the public or private employees who might have
any knowledge of the activities, transactions or operations of the
foundations shall at all times maintain secrecy and confidentiality
in this respect. Infringement of this shall be penalized with six
(6) months imprisonment and a $50,000.00 fine without prejudice
of the corresponding civil liability.
The provisions of this article shall apply without prejudice of
the information which must be disclosed to the official authorities
and of the inspections that they must carry out in the manner established
by the law.
Article 36.
Any controversy for which there is no special procedure in this
Law, shall be resolved through summary proceedings.
The foundation charter or the regulations of the foundation may
establish that any controversy arising in respect to the foundation
shall be resolved by arbiters or arbitrators, as well as establish
the procedure they should abide by. In the event that such procedure
is not established, the rules in respect to such matters, as contained
in the Judicial Code, shall apply.
Article 37.
This law shall be effective from the date of its publication.
Para
más preguntas o información por favor escríbanos a:
info@panama-foundation.com
, o llame a nuestras oficinas en Panama: ++(507)227.6645
Ordene
ahora o Contactenos
Hoy!!
|
