Re: Constitution - formal proposal (v0.5)
On Fri, 3 Apr 1998, Oliver Elphick wrote:
> Dale Scheetz wrote:
> >SPI is incorporated in the US, so none of your discussion of the British
> >tax laws is of any consequence. Ian, as project leader, collects no money
> >and has no control over SPI, and should have no liability here or at home.
>
> Sorry, but that is wishful thinking. I'm not talking about SPI but about
> Debian; as I've already explained, there is at lest an arguable case
> that Debian could be regarded as being controlled from Britain - that
> makes Ian potentially liable. We can't afford to pay lawyers to argue
> the point here and in every country where the question might arise.
But my point was the Debian does not control any money, SPI does, at our
behest. That is what it was constructed for.
> >
> >SPI is, I believe, incoporated as non-profit (or the papers are being
> >filed). SPI collects donations for Debian and administers the money for
> >us. Debian, technically doesn't own anything. Not even our DNS entries.
> >
> >SPI was establised as a shield, or umbrella, under which Debian could
> >opperate without the need to deal with the monetary aspects of the
> >project.
>
> Yes, I understand all this. My concern is to see that it actually remains
> so. The point is, that in fact, Debian is an unincorporated association.
> As such, it is potentially liable to Corporation Tax in Britain, and
> possibly to other taxes in a number of other countries. One of the
> criteria for being taxable is possession of property and income.
> The proposed constitution is asserting beneficial ownership of certain
> moneys and properties held on our behalf by SPI.
>
Which is just another reason that statements about our relationship with
SPI should never appear in our constitution. (which I have already argued
on other grounds)
> What I fear is that the protection afforded by the relationship with SPI may
> inadvertently be destroyed. I am not saying that it definitely will be, but
> that there is a risk of it. The tax position of Debian would be a
> nightmare to sort out, if the question were ever allowed to be raised.
>
> In addition, any Debian officers would possibly have unlimited personal
> liability, since Debian is not incorporated.
>
The Debian Distribution, (the only thing that Debian developers can be
held accountable for) is copyright SPI. As the copyright holder, they are
the legal entity that take the heat for the distribution. "Officers" of
the Debian organization do not handle or decide in matters of money.
Personally, I would have no problems with SPI collecting donations from
Debian users, Redhat users, and other Linux participants; and then making
all of the decisions about how that money is to be spent. This would more
honestly reflect the relationship between the parties and more clearly
delineate between the Production side and the Marketing side. (I think it
is clear who belongs to which by this division of labor)
> When you are dealing with tax law, you need to think of what the relevant
> tax authorities would say, not what you think ought to be the case.
>
Tax authorities are only of concern if there is any money in question.
With Debian, there isn't.
>
> > Because of hard feelings among its board, it seems that this
> >"close" relationship has erroded somewhat, to the detriment of all
> >involved.
>
> What is SPI's ownership? Does it issue shares (stock)? or is there some other
> criterion?
>
We are still waiting on the public release of the articles of
incorporation, so I am not well enough informed to answer these questions.
What I can say, is that this is all the responsibility of SPI, and not a
concern of the Debian Project. This was the main reason that I supported
the formation of SPI over others objections. It provides a clear place
where the monetary issues may be dealt with without compromising the
volunteer nature of the software development effort.
I do know that the board of directors of SPI is completely comprised of
Debian associates, but I don't think that has any bearing on this issue.
Luck,
Dwarf
--
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e-mail: dwarf@polaris.net Tallahassee, FL 32308
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