12 May
2024
12 May
'24
9:05 a.m.
Hi Winfried,
Thank you for your feedback.
The tax issue is certainly important, but I am convinced that a solution can be found both
in terms of the Country with the lowest tax burden and in terms of the type of
organization to choose (Association or Foundation).
All the best,
Nicola
ssigen
On 10 May 2024, at 18:32, Winfried Tilanus wrote:
Hi,
I'm in favour, it would make several types of cooperation easier. But, I can't
judge what this would mean for taxes and so on.
Winfried
On 9 May 2024 12:09:32 CEST, Nicola Fabiano <nicola(a)fabiano.law> wrote:
;TLTR
Dear all,
Regarding what is in the subject, I reproduced below the entire thread of emails
exchanged with the Board members related to my proposal regarding the presence of XSF in
Europe.
Each email is a block with a line separating one from the others.
All the best,
Nicola
***
Dear all,
Following our last Board meeting, I propose to discuss the organization of XSF's
activities further to promote the XMPP protocol at every level, including at European
institutions, possibly by participating in projects to obtain contributions and funding (I
have some ideas, but I will explain later).
Each Board member's input is crucial.
I encourage everyone to outline a few items as our agenda for the next 6/12 months.
These points should be related to programmatic and organizational business only
(non-technical), reflecting your unique perspectives and expertise.
In that way, everyone can be in the running for one or more items to deal with and what
goal we (XSF) want to achieve following our program.
Hence, feel free to share your thoughts about the programmatic and organizational
business, and then we can discuss them.
Apart from programmatic and organizational business, the first step is the proposal
concerns amending the statutes of the registered office. That modification is necessary to
access the European institutions. Other modification proposals are welcome, and we can
evaluate all of them.
Otherwise, an amended version (in bold italic) of Article 1 follows.
### ARTICLE I: Offices
**Section 1.1 Registered Office and Registered Agent.** The address of the initial
registered office of The XMPP Standards Foundation (the “Corporation”) in the State of
Delaware and the name of the initial registered agent of the Corporation at such address
are set forth in the Certificate of Incorporation (the “Certificate”). The Corporation
may, from time to time, designate a different address as its registered office or a
different person as its registered agent, or both; provided, however, that such
designation shall become effective upon the filing of a statement of such change with the
Secretary of State of the State of Delaware as is required by law.
***Section 1.2 Principal Offices.*** The principal offices of the Corporation shall be at
1899 Wynkoop Street, Denver, Colorado 80202, ***and at xxxx, xxx, Europe,*** or at such
other place as the Board of Directors shall designate from time to time. The business of
the Corporation shall be transacted from the principal ***offices***, and the records of
the Corporation shall be kept there. ***Both principal offices have legal effect,
irrespective of where the activities are carried out and where they are intended***.
**Section 1.3 Other Offices.** The Corporation shall have such offices either within or
outside the State of Delaware and within or outside the United States, as the Board of
Directors may from time to time determine or as the business of the Corporation may
require. In the event the Corporation desires to qualify to do business in one or more
states other than Delaware, the Corporation shall designate the location of the registered
office in each such state and designate the registered agent for service of process at
such address in the manner provided by the law of the state in which the corporation
elects to be qualified.
***
Dear Eddie,
Thank you for your email.
I highlight that my email follows what I said during the Summit in Bruxelles.
My intervention represents a proposal submitted to the Board, which must be discussed and
voted on.
On 27 Apr 2024, at 15:14, E.M. wrote:
--
Normally there is some text here, bragging about the new phone and excusing for the
brevity. That is insane: if this phone was really that great, I would have sent a decent
mail. Dear Nicola,
many thanks for the effort to bring to review of our XSF organizational setup and make a
suggestion to create a legal instance in Europe.
I assume there will be more coming than creating an European instance for the XSF, right?
I thought it would be appropriate or helpful to try to be more proactive in Europe.
This also involves ensuring that XSF has a European presence and is ready with an action
plan and agenda.
Not being a lawyer, I am supporting this attempt
in general very much. I believe we have a strong community in Europe and should also back
up our community here with a legal instance for the technology we standardize.
My question would be what legal aspects we need to discuss having a "bilateral"
(or more) organizational setup? Does this bring any conflict?
How do we as Board member refer and deal with new things like DMA etc.? What will EU
legislation expect from us? What can we expect?
From my perspective, the legal aspects are mainly concerned with amending the bylaws to
provide for a seat in Europe and the existence of a program, i.e., what XSF proposes to do
to promote XMPP.
There shouldn't be any conflict because these are purely organizational activities.
I think that Board members should continue performing the same current activities in
compliance with the bylaws, such as providing information, communicating, providing
support where necessary, plus implementing programs.
It's important to note that XSF, as a foundation, must act respecting the bylaws,
make proposals, and realize projects (if they exist).
We should not expect more.
However, XSF has the potential to form partnerships with companies that have plans to
present projects on a European level.
If we create a new legal instance, can we create
the instance on an "Europe level" or would the instance exist in a distinct EU
country? If so, which country?
The current bylaws already provide the possibility of setting up other locations.
We should only add a European XSF legal office (any Member State) so anyone can see this
in the bylaws themselves.
My question to Board would be: As I am in all
favor for this attempt, and also in favor to put work and time into it, are you as well in
favor? Or are you not, and what does not meant to you? My basic question is that I
don't want to spent time fighting something that is actually not of interest by a
majority in the Board or the XSF organization. Please kindly review this for yourself,
too.
I reiterate that my intervention is only a proposal that the Board discusses and votes
on.
Therefore, I await the replies of others.
By the way, do we need to review the way we
handle member applications and personal data? Any other hosting of data?
Have a good day and stay healthy,
Eddie
On 26.04.24 16:28, Nicola Fabiano wrote:
> Dear all,
>
> Following our last Board meeting, I propose to discuss the organization of XSF's
activities further to promote the XMPP protocol at every level, including at European
institutions, possibly by participating in projects to obtain contributions and funding (I
have some ideas, but I will explain later).
>
> Each Board member's input is crucial.
> I encourage everyone to outline a few items as our agenda for the next 6/12 months.
> These points should be related to programmatic and organizational business only
(non-technical), reflecting your unique perspectives and expertise.
>
> In that way, everyone can be in the running for one or more items to deal with and
what goal we (XSF) want to achieve following our program.
>
> Hence, feel free to share your thoughts about the programmatic and organizational
business, and then we can discuss them.
>
> Apart from programmatic and organizational business, the first step is the proposal
concerns amending the statutes of the registered office. That modification is necessary to
access the European institutions. Other modification proposals are welcome, and we can
evaluate all of them.
>
> Otherwise, an amended version (in bold italic) of Article 1 follows.
>
> ***
>
> ### ARTICLE I: Offices
>
> **Section 1.1 Registered Office and Registered Agent.** The address of the initial
registered office of The XMPP Standards Foundation (the “Corporation”) in the State of
Delaware and the name of the initial registered agent of the Corporation at such address
are set forth in the Certificate of Incorporation (the “Certificate”). The Corporation
may, from time to time, designate a different address as its registered office or a
different person as its registered agent, or both; provided, however, that such
designation shall become effective upon the filing of a statement of such change with the
Secretary of State of the State of Delaware as is required by law.
>
> ***Section 1.2 Principal Offices.*** The principal offices of the Corporation shall
be at 1899 Wynkoop Street, Denver, Colorado 80202, ***and at xxxx, xxx, Europe,*** or at
such other place as the Board of Directors shall designate from time to time. The business
of the Corporation shall be transacted from the principal ***offices***, and the records
of the Corporation shall be kept there. ***Both principal offices have legal effect,
irrespective of where the activities are carried out and where they are intended***.
>
> **Section 1.3 Other Offices.** The Corporation shall have such offices either within
or outside the State of Delaware and within or outside the United States, as the Board of
Directors may from time to time determine or as the business of the Corporation may
require. In the event the Corporation desires to qualify to do business in one or more
states other than Delaware, the Corporation shall designate the location of the registered
office in each such state and designate the registered agent for service of process at
such address in the manner provided by the law of the state in which the corporation
elects to be qualified.
>
> ***
>
> I look forward to receiving a reply from you.
>
> All the best,
>
> Nicola
>
> ssigen
I am available.
***
Ciao Peter,
Thank you for your email and your insights.
On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:
Ciao Nicola,
Thank you for initiating this discussion.
I don't feel qualified to provide accurate insights regarding your proposal, so
instead I will ask a few questions:
(1) Is the intent here primarily to seek funding from European organizations (e.g., EU
grants)?
Not only that, but the intention is to create a European positioning to evaluate any
possible initiative. XSF's official headquarters in the US could be a distraction.
From my point of view, an official presence in Europe would facilitate involvement in
possible partnerships and more attention from the institutions (the European digital
strategy is strongly focused on an internal market). That is my idea, and I hope to be
right.
(2) Is European domicile or a European business
presence required in order to receive such grants?
That may not be the case, but as I said, presence in Europe would facilitate access to
possible resources.
(3) What are the legal, regulatory, tax (and thus
also financial) implications of establishing a European business presence or
"co-domicile" such as you have outlined?
I am not an accountant, so I am answering from my experience. Since XSF is a Foundation,
contributions should not be taxed, especially if they come from institutional sources
(participation in any EU projects). It may be necessary, with an office in Europe, to
apply for a tax code or VAT number, but this should be asked of an accountant.
(4) What is needed in order to establish such a
presence or co-domicile? Do we need an office / physical address, or merely a mailing
address?
The bylaws should be changed to provide for a seat in Europe with a postal address of any
kind.
(5) Should we perhaps consider moving the
organization to Europe entirely instead of having some presence in the USA and some in a
European country?
I propose to amend the bylaws, and I note two possible solutions:
1. change the registered office from the US to Europe and then have only one office in
the EU;
2. Add - as provided for in the statute - a seat in the EU that is as official as the one
in the USA; this second solution, legally, seems less valid to me.
It always depends on what one wants to do, i.e., what projects are to be realized and
what XSF intends to do.
I'd like to "take a step back" and
consider what our goals are. Consider:
- perhaps we feel it would be beneficial to significantly increase certain kinds of
activity, for example:
- promote XMPP as a neutral technology for interoperability (cf. DMA)
- raise money that we can use to help support implementation of key protocols in
open-source servers and clients
- perhaps we feel that the best way to do that would be to seek out funding from European
sources
- perhaps we feel we won't be considered for such grants unless we have a European
business presence / co-domicile
- then we might conclude that what you propose makes sense
But it seems to me that we need to be clear on the goals, first.
I agree, but XSF's identity and the goals it wants or would like to achieve need
clarification. Therefore, an organizational, administrative (not technical) program is
needed.
Peter
P.S. Aside from the reasoning outlined above, there might be other reasons to consider a
co-domicile arrangement or moving the Foundation to Europe entirely. For example: most of
the XSF's and the community's activity (Summits, FOSDEM, major open-source
projects and companies) is in Europe, not North America. So that might be worth discussing
anyway.
I agree, and this is one of the reasons why I made my proposal.
We are in no hurry. We can discuss it together, but we must evaluate it soon. Otherwise,
XSF remains isolated from the rest of the business world, with a role relegated solely to
technical aspects. XSF deserves more.
All the best,
Nicola
On 4/26/24 8:28 AM, Nicola Fabiano wrote:
> Dear all,
>
> Following our last Board meeting, I propose to discuss the organization of XSF's
activities further to promote the XMPP protocol at every level, including at European
institutions, possibly by participating in projects to obtain contributions and funding (I
have some ideas, but I will explain later).
>
> Each Board member's input is crucial.
> I encourage everyone to outline a few items as our agenda for the next 6/12 months.
> These points should be related to programmatic and organizational business only
(non-technical), reflecting your unique perspectives and expertise.
>
> In that way, everyone can be in the running for one or more items to deal with and
what goal we (XSF) want to achieve following our program.
>
> Hence, feel free to share your thoughts about the programmatic and organizational
business, and then we can discuss them.
>
> Apart from programmatic and organizational business, the first step is the proposal
concerns amending the statutes of the registered office. That modification is necessary to
access the European institutions. Other modification proposals are welcome, and we can
evaluate all of them.
>
> Otherwise, an amended version (in bold italic) of Article 1 follows.
>
> ------------------------------------------------------------------------
>
>
> ARTICLE I: Offices
>
> *Section 1.1 Registered Office and Registered Agent.* The address of the initial
registered office of The XMPP Standards Foundation (the “Corporation”) in the State of
Delaware and the name of the initial registered agent of the Corporation at such address
are set forth in the Certificate of Incorporation (the “Certificate”). The Corporation
may, from time to time, designate a different address as its registered office or a
different person as its registered agent, or both; provided, however, that such
designation shall become effective upon the filing of a statement of such change with the
Secretary of State of the State of Delaware as is required by law.
>
> /*Section 1.2 Principal Offices.*/ The principal offices of the Corporation shall be
at 1899 Wynkoop Street, Denver, Colorado 80202, /*and at xxxx, xxx, Europe,*/ or at such
other place as the Board of Directors shall designate from time to time. The business of
the Corporation shall be transacted from the principal /*offices*/, and the records of the
Corporation shall be kept there. /*Both principal offices have legal effect, irrespective
of where the activities are carried out and where they are intended*/.
>
> *Section 1.3 Other Offices.* The Corporation shall have such offices either within or
outside the State of Delaware and within or outside the United States, as the Board of
Directors may from time to time determine or as the business of the Corporation may
require. In the event the Corporation desires to qualify to do business in one or more
states other than Delaware, the Corporation shall designate the location of the registered
office in each such state and designate the registered agent for service of process at
such address in the manner provided by the law of the state in which the corporation
elects to be qualified.
***
On 2 May 2024, at 1:38, Peter Saint-Andre wrote:
Ciao Nicola, more thoughts below...
On 4/30/24 1:32 AM, Nicola Fabiano wrote:
I agree with you. As you said, it is worth considering a legal office in Europe.
Ciao Peter,
Thank you for your email and your insights.
On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:
Ciao Nicola,
Thank you for initiating this discussion.
I don't feel qualified to provide accurate insights regarding your
proposal, so instead I will ask a few questions:
(1) Is the intent here primarily to seek funding from European
organizations (e.g., EU grants)?
Not only that, but the intention is to create a European positioning to evaluate any
possible initiative. XSF's official headquarters in the US could be a distraction.
From my point of view, an official presence in Europe would facilitate involvement in
possible partnerships and more attention from the institutions (the European digital
strategy is strongly focused on an internal market). That is my idea, and I hope to be
right.
This seems like a reasonable hypothesis.
If there were no costs involved and we could identify people to handle certain aspects of
XSF operations (e.g., the Treasurer role that I've filled for many years), I would be
in favor of moving the entire organization from the USA to the EU.
Of course, there are always costs involved and it's not always easy to find people to
fill certain roles in the long term. :-) But I think it's worth exploring.
Naturally, if this change led to more funding, then we'd have money to spend on legal
and accounting help to make the transition across the Atlantic. But we have a bit of a
"chicken and egg problem" here.
(2) Is European domicile or a European
business presence required in
order to receive such grants?
That may not be the case, but as I said, presence in Europe would facilitate access to
possible resources.
(3) What are the legal, regulatory, tax (and thus also financial)
implications of establishing a European business presence or
"co-domicile" such as you have outlined?
I am not an accountant, so I am answering from my experience. Since XSF is a Foundation,
contributions should not be taxed, especially if they come from institutional sources
(participation in any EU projects). It may be necessary, with an office in Europe, to
apply for a tax code or VAT number, but this should be asked of an accountant.
For sure. I am reasonably familiar with U.S. rules for non-profits, but I am utterly
ignorant of the situation in the EU (or UK), I don't know how things differ by country
and which countries are most friendly to non-profit organizations, etc.
(4) What is needed in order to establish such
a presence or
co-domicile? Do we need an office / physical address, or merely a
mailing address?
The bylaws should be changed to provide for a seat in Europe with a postal address of any
kind.
BTW, the current Bylaws specify an address of 1899 Wynkoop Street in Denver, but that was
the old Jabber Inc. address and we no longer receive mail there. At this point the
Principal Address is probably my house! (We do have a post office box, but business
operations are not conducted there.)
(5) Should we perhaps consider moving the
organization to Europe
entirely instead of having some presence in the USA and some in a
European country?
I propose to amend the bylaws, and I note two possible solutions:
1. change the registered office from the US to Europe and then have
only one office in the EU;
See above. This is not a trivial undertaking and we'd need to estimate the costs,
both initial and recurring. But I am not opposed to it.
2. Add - as provided for in the statute - a seat
in the EU that is as
official as the one in the USA; this second solution, legally, seems
less valid to me.
It always depends on what one wants to do, i.e., what projects are to be realized and
what XSF intends to do.
True. We also need to think about things like organizational continuity and succession
planning. Specifically, I am uncomfortable being one of the only active XSF members in the
U.S., and the only one who can access our bank account, file tax forms, etc.
I'd like to "take a step back"
and consider what our goals are.
Consider:
*
perhaps we feel it would be beneficial to significantly increase
certain kinds of activity, for example:
o promote XMPP as a neutral technology for interoperability
(cf. DMA)
o raise money that we can use to help support implementation
of key protocols in open-source servers and clients
*
perhaps we feel that the best way to do that would be to seek
out funding from European sources
*
perhaps we feel we won't be considered for such grants unless we
have a European business presence / co-domicile
*
then we might conclude that what you propose makes sense
But it seems to me that we need to be clear on the goals, first.
I agree, but XSF's identity and the goals it wants or would like to achieve need
clarification. Therefore, an organizational, administrative (not technical) program is
needed.
Agreed.
Peter
P.S. Aside from the reasoning outlined above, there might be other
reasons to consider a co-domicile arrangement or moving the
Foundation to Europe entirely. For example: most of the XSF's and
the community's activity (Summits, FOSDEM, major open-source
projects and companies) is in Europe, not North America. So that
might be worth discussing anyway.
I agree, and this is one of the reasons why I made my proposal.
We are in no hurry. We can discuss it together, but we must evaluate it soon. Otherwise,
XSF remains isolated from the rest of the business world, with a role relegated solely to
technical aspects. XSF deserves more.
I'm curious to hear more about your thinking here. Peter
Ciao Peter,
Thank you.
All the best,
Nicola
***
On 2 May 2024, at 17:37, Peter Saint-Andre wrote:
> On 5/2/24 1:01 AM, Nicola Fabiano wrote:
>> On 2 May 2024, at 1:38, Peter Saint-Andre wrote:
>>
>> Ciao Nicola, more thoughts below...
>>
>> On 4/30/24 1:32 AM, Nicola Fabiano wrote:
>>
>> We can discuss it together, but we must
>> evaluate it soon. Otherwise, XSF remains isolated from the rest
>> of the business world, with a role relegated solely to technical
>> aspects. XSF deserves more.
>>
>> I'm curious to hear more about your thinking here.
>>
>> I agree with you. As you said, it is worth considering a legal office in Europe.
>
> Specifically, I would like to understand more fully why you say that the "XSF
remains isolated from the rest of the business world, with a role relegated solely to
technical aspects."
>
> Since its founding in 2001, the XSF as a standards development organization has
indeed been dedicated (or relegated) solely to technical aspects: primarily defining
standardized protocols along with a very few ancillary matters. With a few rare
exceptions, the XSF hasn't even actively supported (e.g., with monetary grants) the
projects and companies that develop XMPP-compatible software. In large part, this is a
legacy of the XSF's place in the Jabber/XMPP ecosystem and its founding as a neutral
organization that would not favor any particular vendor or developer, or even favor
open-source software over proprietary software. It is also consistent with the nature of
our community, which consists of technically-minded people who don't know much about
things like marketing or government policy.
>
> In your mind, what would a closer integration with the rest of the business world
look like? What new activities would we engage in? What expertise would we need to
acquire? And so on.
>
Peter
Peter,
My meaning was that XSF—as a foundation—even though it was born in a technical context
and is dedicated to XEP, could also organize public events, do dissemination, participate
in competitions to obtain public or private funding, be proactive in the communication and
dissemination of XMPP, etc.
I did not mean that XSF does not carry out activities but that these could extend.
From my point of view, I see more opportunities in Europe than in the rest of the world.
ssigen