statutes say foundation has to cover entrepreneur and family expenses – The Economic Journal


The statutes of the José Berardo Foundation, Private Social Solidarity Institution (IPSS), indicate that the property donated by the entrepreneur will have to "provide for housing, sustenance, education, health and other expenses" for the owner and the family.

"Goods that may be affected by the founder [o empresário conhecido como Joe Berardo] shall be subject to the express charge of the beneficiary [a Fundação] provide for the housing, sustenance, education, health and other expenses, expenses and food of the founder, his spouse and descendants ", can be read in number two of article five of the bylaws of Fundação José Berardo, consulted by Lusa and also cited by the edition of the Madeira Newspaper of November 10, 1994.

The statutes further indicate that "in the case of the foundation terminating before the death of the founder or of the last of his descendants, assets assigned to the foundation by the founder or those in their place shall revert to the same founder or his descendants."

On Sunday, the Correio da Manhã newspaper reported that the Public Prosecutor's Office (MP) is investigating the José Berardo Foundation as part of a Caixa Geral de Depósitos (CGD) lawsuit against Metalgest (holding company linked to Berardo) in Funchal, to recover a debt of 61.5 million euros.

According to the Attorney General's Office, cited by the newspaper, a certificate extracted by the judge in that case "gave rise to a proceeding in the Attorney's Office of Commerce / Executions of Funchal", and is based on the judge's doubt as to whether the José Berardo Foundation, IPSS may have as its "corporate purpose to be compatible with risk investments associated with the acquisition of shares".

In 2015, according to an EY audit to Caixa Geral de Depósitos (CGD), the public bank's exposure to the José Berardo Foundation was 268 million euros, after a credit grant of 350 million euros to buy shares in BCP , giving as guarantee their own shares, which devalued considerably and generated great losses for the bank.

This is not the first time that the Public Ministry has been investigating the José Berardo Foundation.

In 1993, the MP had already asked for the nullity of the José Berardo Foundation's articles of association and the Foundation's charter, as they allowed "tax evasion and fraud".

According to the prosecutor at the time, Orlando Ventura, at the origin of the case was "the fact that the statutes contain some provisions contrary to the law" that governed the operation of social solidarity institutions, told Lusa on November 25, 1993 .

The MP also noted that the statutes gave the possibility of the goods to return to the hands of its founder, the businessman Joe Berardo.

The MP also alleged that the provision in number two of article five, which says that the goods donated by Joe Berardo to the foundation should "provide housing, sustenance, education, health and other expenses" to the businessman and family members, indicated that the institution was "primarily obligated to the satisfaction of those charges, which are proper to private assets."

However, the court's decision was mostly favorable to the Berardo Foundation, except in point three of article five of the statutes, which was declared void and withdrawn, and which gave the founder "for himself the right to dispose, by death or by act among the living, of the assets to be affected by the Foundation, "could be read in the November 10, 1994 edition of the Madeira Newspaper, consulted by Lusa.

Berardo then claimed that this point "was only right because the Foundation was waiting at the time to respond to the request for its legalization", motivated by the then reform of the tax system.

On April 20, CGD, BCP and Novo Banco handed over an executive action to collect debts of Joe Berardo, of nearly 1,000 million euros, in the Judicial Court of the Region of Lisbon, also running the José Berardo Foundation and two companies linked to the entrepreneur.

The amount owed to the three institutions totals 962 million euros.



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