Gov/en/Portal:Transparency/Legal-Studies: Difference between revisions

{{ExpertIntro|These legal and fiscal studies cover the relation between the Ynternet.org Foundation, which supervises the WikiDeal applied R&D program, a planned Swiss company named WikiDeal SA, and the people who fund the project.<br>Following the September 2026 pivot, the framework under study distinguishes two flows: contributions with an expected return would be investments, received by WikiDeal SA (to be created), which would finance the realization of the objectives defined by the Foundation; contributions without any return would remain pure donations (Swiss Code of Obligations Art. 239 ss).<br>The former "Rewards" are intended to become WikiDeal Subscription Tokens, inactive at issuance and progressively activated by subscription revenue (CHF 1/month or CHF 10/year).<br>The regulatory positioning under study relies on the FINMA token classification (payment token as working hypothesis, asset token as examined alternative) and on the FinSA Art. 36(1)(b) and (e) prospectus exemptions (fewer than 500 investors or at most CHF 8 million over 12 months, alternative conditions). This inverts the previous "donation, not investment, outside FINMA jurisdiction" argument.<br>The whole framework is proposed as a basis for discussion and must be validated by licensed attorneys before any implementation. The studies are currently consolidated in a single document and could later be split into distinct studies reviewed by distinct attorneys.}}

WikiDeal wants to build a fair online marketplace. Some kind people give money as a pure gift to help build it. Other people would put in money hoping to get something back later, through special tokens. This page is a big homework check: it looks at the rules of Switzerland about money, taxes and gifts, to see how the plan could follow them. A new Swiss company, WikiDeal SA, would receive the money from the people who hope for something back, and it would use that money to do what the Ynternet.org Foundation decides. Real lawyers still need to read and confirm these studies before anything starts.

Preliminary internal legal and fiscal studies of the Swiss framework for the pivoted WikiDeal funding model (September 2026). Two flows are distinguished: contributions with an expected return would be investments, received by a planned Swiss company, WikiDeal SA, which would finance the realization of the objectives defined by the Ynternet.org Foundation (Geneva, tax-exempt); contributions without any return would remain pure donations to the Foundation (Swiss Code of Obligations Art. 239 ss, a correction of the earlier "Civil Code Art. 239" reference). Investors would receive WikiDeal Subscription Tokens, inactive at issuance and activated progressively by subscription revenue (CHF 1/month or CHF 10/year), with an envisaged allocation of 25% to investors and 25% to early supporters (remainder to be confirmed). The regulatory hypothesis under study combines the FINMA token classification (payment token as working hypothesis, asset token as examined alternative) with the FinSA Art. 36(1)(b) and (e) prospectus exemptions (fewer than 500 investors or at most CHF 8 million over 12 months, alternative conditions), inverting the previous "outside FINMA jurisdiction" argument. Over time, WikiDeal SA is envisaged to become a non-profit company, with a progressive decentralization of its mandate towards User Groups. This framework is proposed as a basis for discussion and must be validated by licensed attorneys before any implementation. The studies are currently consolidated in a single document and could later be split into distinct studies reviewed by distinct attorneys.

: Confirm under which conditions WikiDeal could legally raise funds under the pivoted model: investments received by a planned Swiss company, WikiDeal SA, which would finance the realization of the objectives defined by the Ynternet.org Foundation, with WikiDeal Subscription Tokens issued to investors.

: Describe a generic mechanism for platform deprivatization and user reappropriation, structured as an applied R&D program divided into two phases: incubation (Ynternet.org Foundation) and operations (WikiDeal SA, to be created, replacing the previously envisaged WikiDeal Association).

: The mechanism is intended to remain replicable for any marketplace (transportation, housing, volunteering, local planning). WikiDeal SA would receive the investment flows and finance the realization of the objectives defined by the Foundation, under a neutral management mandate; the founder would later step back, and the company is envisaged to become a non-profit company over time, with a progressive decentralization of the mandate towards User Groups. The mechanism draws on precedents such as cooperative insurance companies (La Mobilière) and digital commons that have set standards based on free licenses (W3C, Wikimedia Foundation, IETF). All operate at cost without speculation.

: Define the Swiss fiscal and regulatory framework for the pivoted WikiDeal funding model, covering the Ynternet.org Foundation (Geneva, tax-exempt), the planned WikiDeal SA, investors and donors.

: Clarify the roles envisaged after the pivot: the Ynternet.org Foundation (tax-exempt, supervised by ESA/ASF Bern) would define strategy, vision and objectives; WikiDeal SA (to be created) would receive the investments and finance the realization of those objectives under a neutral management mandate.

: Pure donations would remain addressed to the Foundation. Two special cases are envisaged: Targeted Donations and para-public "provision fund" contributions would remain pure donations, but they would be cashed by WikiDeal SA, which would attribute them to the Foundation. The mandate is intended to be progressively decentralized towards User Groups, with the Foundation diversifying its mandate holders over time. Initial remunerations of providers are envisaged in WikiDeal Subscription Tokens; karma credits remain a future intention, not an active feature. The exact legal instruments (statutes, mandate agreement, conflict-of-interest safeguards) are [to be confirmed] with the attorneys and the Foundation board.

: Establish the legal nature of the two funding flows: contributions with an expected return would be investments (investment agreement with WikiDeal SA, issuance of WikiDeal Subscription Tokens), while contributions without any return would remain pure donations to the Foundation (Swiss Code of Obligations Art. 239 ss). This inverts the previous "Donation (Not Investment) Clarification".

: The tax treatment would depend on the token qualification: a pure payment token would tend not to trigger withholding tax (Withholding Tax Act Art. 4) or issuance stamp duty, while a token granting a share of profits would risk being treated like a participation right, with 35% withholding tax on distributions. Stamp duty exemptions are being examined for WikiDeal SA (franchise of CHF 1 million at incorporation; specific exemption for companies without commercial purpose). The donation flow to the Foundation would keep following cantonal gift-tax rules. Every tax point on this page remains to be validated by an attorney or tax specialist [to be confirmed].

: Determine VAT obligations for the operating entity (previously the WikiDeal Association, now the planned WikiDeal SA), keeping the brokerage-commission model under which WikiDeal would never possess transaction funds.

: In the previous study, VAT applied only to commissions (MWSTG Art. 24), with the non-profit turnover threshold of CHF 150,000/year (MWSTG Art. 10(2)) minimizing exposure, and the brokerage model reducing AMLA obligations. The intention is to carry this positioning over to WikiDeal SA. Whether that turnover threshold would still apply to a non-profit company, and how token issuance and activation would be treated for VAT, are open points [to be confirmed by the attorney or tax specialist].

: The intended qualifications are: the investment would be governed by an investment agreement with WikiDeal SA, with issuance of tokens; the activation would depend on subscription revenue actually received; the taxation of an activated token remains to be determined with the attorneys [to be confirmed]; and the separate pure donation to the Foundation would remain a donation (Swiss Code of Obligations Art. 239 ss). Whether the combination of these steps could trigger any requalification is one of the questions submitted for legal review.