Cases of prohibition and restriction of donation under the law of the Civil Code of the Russian Federation

The concept of gift agreements

A gift agreement is a document accompanying the transfer of ownership of an object, which one economic entity transfers to another without monetary or other compensation. In most cases, the agreement is executed by the donor.

Legal entities should familiarize themselves with the legal requirements for such agreements. Not every transaction will be considered compliant with the law.

The assignment of property rights without signing the appropriate agreement is contrary to the laws of the country. Such an action is recognized by the court as void. The assignment of property rights to cover up another legally significant action is also prohibited.

Legislative regulation of donation transactions is carried out by articles 573-579 of the country’s civil legislation.

Prohibition and restriction of donation

The law stipulates situations when the execution of a gift agreement is impossible for one reason or another. There are also cases when there are restrictions on donating property. Let's look at these situations in more detail.

Prohibition of donation

Article 575 of the Civil Code of the Russian Federation “Prohibition of Gifts” states that, under penalty of invalidity of the transaction, it is prohibited to make gifts on behalf of young children under 14 years of age and citizens who are completely incapacitated as a result of physical or mental illness by their representatives or guardians.

Restrictions prohibiting gifts related to the age of the donor are due to the fact that children under the age of fourteen cannot make any transactions at all, even if their parents approve of them. They are allowed to conclude small household transactions in the amount of up to three thousand rubles, and receive gifts free of charge. However, anything more is already subject to a general ban. The same applies to disabled people.

Important! Even the consent of the guardianship authorities does not give the right to conclude deeds of gift. This is a general prohibition with no exceptions. For example, a real estate donation transaction made on behalf of a minor will not even be registered with Rosreestr.

The prohibition on giving also applies to the receipt of gifts by civil servants, military personnel, doctors, and teachers . This mainly applies, of course, to those gifts that constitute a bribe.

That is, the donation in such cases is no longer gratuitous , but is made in exchange for the provision of any preferences during the performance of work duties. Therefore, in essence, it will not be a gift, but will be considered as bribery of an official.

At the same time, according to the same law, gifts of up to three thousand rubles can be made to specified persons . It is believed that a gift of this value can only express gratitude for a job well done, and not the intention of making a profit beyond the salary.

In addition, such a prohibition does not apply to valuable gifts in the form of bonuses, awards, and other bonuses for excellent work and service received by employees . They are considered the property of the state.

Interesting on the topic:

How to refuse a donation under a contract and the consequences of refusal

Grounds, procedure and terms for challenging donation agreements

The prohibition of donation in civil law is provided for in relations between commercial organizations . As a general rule, legal entities cannot make gifts to each other. This is primarily due to the opportunities that donation provides and which businessmen can take advantage of to evade paying taxes.

For example, make a gift in circumvention of the law in order to reduce the amount of taxes required to be paid to the state from each transaction. For example, when a company, instead of selling, suddenly begins to give away its property. This is done in order to transfer assets to another legal entity and not pay due taxes on income from profits.

Or in the case when the so-called debt forgiveness occurs during the liquidation of the organization . Here, the debtor - a commercial enterprise - in order to report to the tax service before closing, must pay off all debts to creditors. If it is possible to do this without going to court, especially when the debts are fictitious and the enterprises are interdependent, the debt can be forgiven. However, if the court establishes the intention of the creditor to relieve the debtor of the obligation to pay the debt as a gift, this will be qualified as a sham transaction. Because the intention to transfer property as a gift is a mandatory component of the gift agreement.

In this case, debt forgiveness is prohibited by the provisions of Art. 575 of the Civil Code of the Russian Federation , according to which donations are not allowed in relations between commercial organizations.

Gift Restriction

In addition to prohibitions, there are conditions in the law that limit donation . All of them are in one way or another connected with compliance with a number of rules before giving. Giving is a transaction like any other; it is subject to general rules on the procedure for its implementation. For example, compliance with certain conditions, such as obtaining consent for a gift from those persons whose consent is required.

According to Art. 576 of the Civil Code of the Russian Federation, if a thing owned by two or more persons is given, it is required to obtain the consent of all its other owners . The same applies to property acquired during marriage. One spouse must ask the other spouse for written permission to transfer the property as a gift.

Reference. Donations on behalf of minors from 14 to 18 years of age and those with limited legal capacity must obtain permission from the guardianship and trusteeship authorities.

State-owned enterprises, all of whose property is state property, are also required to seek the consent of the main owner for transactions, even such gratuitous ones as donations.

The law establishes the specifics of donation , which is made by transferring a debt. Transfer of debt occurs when the donor, wanting to make a gift, takes away the recipient’s obligation to pay under some agreement. Agreements can be different - from a regular loan to a mortgage. Or, conversely, the donor transfers to the donee his right to recover his debt from someone.

You can donate your right of claim to the donee or take over his debts only if they do not relate to the duties that must be performed personally by the donor. For example, the right of the donor to receive child support from the father cannot be transferred as a gift to another person.

Transfer of property as a gift

The procedure for transferring an object from one company to another may entail a change in the form of ownership of the transferred property, depending on whose ownership it is now located.

For example, one government organization transferred housing to another. Subsequently, the donee began to rent out housing for an industrial store. The donor, having learned about this, filed a claim with the court to declare the transaction void, considering that the transaction was concluded for the purpose of making a profit. The court rejected the claim, since the housing remained in state ownership, and the budget was replenished from the income received.

Donation between legal entities

There is an opinion that it is prohibited to conclude a gift agreement between legal entities, but this is not at all true. The Civil Code of the Russian Federation does not establish a direct taboo on the transaction, but there are some restrictions.

What non-profit organizations can give each other:

• Real estate and equipment;
• Technique;
• Cars;
• Copyright;
• Different values.

As for restrictions, they are indicated in Art. 575 of the Civil Code of the Russian Federation, which states that legal entities registered in medical or educational institutions, as well as those in municipal or government service, cannot receive gifts worth more than 3,000 rubles, incl. and if it is related to official position.

Important! Donation between commercial organizations is prohibited if the price of the donated item exceeds RUB 3,000.

Donation of property

One legal entity can donate property to another, and it will be recognized as federal or municipal property, depending on whose ownership it has passed.

For example:

OJSC Belinvest transferred an apartment to OJSC Belsport for use under a donation agreement. Both enterprises are state-owned. After some time, the management of Belinvest OJSC became aware that the donated premises were being used for business purposes - for the sale of sporting goods. The representative filed a lawsuit to cancel the deed of gift, because considered that the property was registered for the purpose of making a profit, and an agreement between commercial companies is prohibited. The court rejected the claim because the apartment remains state property, but the company can use it to generate income if it increases the budget.

Consider a donation between a federal and municipal organization:

The Main Directorate of the Ministry of Emergency Situations, which is a federal body, donates the existing equipment to the MKU "GOChS" - the municipality. A gift agreement is concluded between them, on the basis of which the property becomes municipal property.

Giving money

Nonprofit organizations can give each other securities or money in bank accounts. Donations of finances are allowed to cover the debt obligations of the donee. The deed of gift must not contain the terms of retribution, otherwise it will be considered void.

Donation of copyrights

If the type of activity of a legal entity is the creation of unique works, logos, slogans, paintings, music, literature and inventions, it can grant copyright at its discretion. If related rights are donated, the recipient will be able to use the gift, but attribution may be prohibited. All conditions are negotiated individually and specified in the contract.

Copyright deed

A business entity may transfer the right to use and dispose of copyright if the organization’s activities consist of creating:

• 
  literary works

• logos
• slogans
• works of art
• inventions and other things

When concluding a transaction for donating related rights, the recipient should carefully study the terms of the agreement. Its clauses may provide for the use of an object taken into possession without attribution. All details are provided for in the contract.

Registration of deed of gift between companies

In most cases, the execution of a gift transaction between business entities is contrary to current legislation. But there are some exceptions.

For example, non-profit organizations can transfer to each other:

• immovable objects and technical devices
• technique
• vehicles
• copyright
• other valuables

According to Art. 575 of the civil legislation, legal entities whose activities relate to the educational or medical sphere are prohibited from accepting gifts of things more expensive than 3 thousand rubles.

It is prohibited to give gifts to both individuals and legal entities. Official powers do not play a role in this.

Donation between commercial organizations is prohibited

There is a widespread belief that gifts between legal entities are prohibited.
This statement is not entirely correct. Subp. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation (hereinafter referred to as the Code) contains a provision that donations between commercial organizations are prohibited. The only exception to this rule is the presentation of ordinary gifts whose value is less than 3 thousand rubles. (for example, stationery with a company logo). You can learn about the forms of commercial organizations from the articles:

• “Organizational and legal forms of entrepreneurial activity”;
• “In what form can business partnerships be created?”

The ban in question is explained by the fact that the main purpose of the activities of commercial organizations in accordance with paragraph 1 of Art. 50 of the Code is profit-making. The gratuitous alienation of the property of a legal entity is directly opposite to this goal and excludes the receipt of any income.

Courts often do not recognize as gift agreements agreements on the gratuitous transfer of property by the main company to its subsidiaries, since the purpose of such agreements is to increase the investment attractiveness of the subsidiary, and not to transfer property as a gift (Resolution of the AS TsO dated 03/02/2016 No. A84-291/ 2015, ruling of the Supreme Court of the Russian Federation dated July 1, 2016 No. 310-KG16-6736 in case No. A14-7898/2015).

The absence in the contract of an indication of a price or a counter-representation does not indicate that the contract is gratuitous, for example, in the case when, under an agreement of assignment of rights under a lease agreement, responsibilities are also transferred (resolution of the AS ZSO dated 06/09/2016 in case No. A46-7612/2015).

Gifts between business entities

Article 575 of the civil legislation establishes a direct ban on the execution of deeds of gift between companies. This requirement is explained by the meaning of the work of a commercial organization. Its activities involve making a profit. In this regard, the gratuitous transfer of property rights is recognized by the court as illegal.

But in judicial practice there are cases when the registration of a deed of gift can become legal:

1. Transfer of valuable objects for use by another organization with subsequent return and profit.
2. Large firms may transfer ownership of an asset to their subsidiary. In this case, a number of procedures must be followed. For example, the transferring legal entity must have obligations to the receiving business entity.
3. Firms often enter into agreements under which the donor transfers valuable property to a business entity. The latter sends the donor other property, which is not comparable in value to the accepted gift. The court recognizes such actions as illegal, but they do occur.

Rules for enterprises

On the part of the state Civil Code, it establishes the possibility of transferring rights to any property from one person to another, including organizations and enterprises of various types.

The following gifts can be given to a legal entity:

• real estate objects;
• cash receipts;
• equipment for various purposes;
• valuable items;
• vehicles;
• other values.

Current legislation prohibits the donation of objects or rights whose value exceeds 3 thousand rubles if the donation is made between commercial entities. This norm is established by Article 575 of the Civil Code of the Russian Federation. However, some provisions of the Tax Code of the Russian Federation, which determine the procedure for taxation when accepting a gift, indirectly affirm the possibility of this act.

Between the legal entities, the parties to the transaction, the conditions for transferring the gift are determined through the signing of an agreement. The difficulty of registering gift transactions between commercial organizations lies in the possible conflict between two provisions of the Civil Code:

1. Art. 572 prohibits the registration of a deed of gift if the agreement provides for some kind of remuneration of the relationship.
2. Article 50 predetermines the main direction of activity of commercial enterprises - carrying out activities and making a profit.

In this regard, an important condition arises - a gift agreement between commercial organizations must exclude the possibility of making a profit as a result of accepting a gift. Clause 4 of Article 575 establishes a clear ban on any other gifts between similar organizations, except in cases of acceptance of a gift whose value does not exceed 3 thousand rubles.

As a result, free transactions in such situations are subject to challenge in court if claims arise from any interested party. According to Article 170 (clause 2) of the Civil Code of the Russian Federation, the donation is invalid due to the sham of the transaction. When considering lawsuits, first of all, they proceed from the existence of the slightest possibility of retribution between the donor and the donee. Such an outcome presupposes the return of the original position - the parties are obliged to issue a return.

We suggest you familiarize yourself with How to repay a debt to an organization upon dismissal if there is no money

The situation is different with the registration of a gift in non-profit organizations. The deed of gift is drawn up in writing if the assessed value exceeds 5 minimum wages. The transfer of property of lesser value does not require paperwork.

As part of the signed agreement with a non-profit organization, the following principles must be observed:

1. Immediate transfer of rights to the subject of donation.
2. An expression of intention to transfer the gift at a later date.
3. Transfer of a gift upon the occurrence of certain circumstances.

The recipient has the right to accept the gift or refuse it at his own discretion. When a gift is sent to a charitable foundation, public organization, or religious association, it is more appropriate to conclude a donation agreement in accordance with Art. 582 of the Civil Code of the Russian Federation. In this case, the donor has the right to monitor the intended use of the transferred gift.

Consequences of donation

If two companies have executed a gift agreement for an amount exceeding 3 thousand rubles, then it can be terminated in court. If the rights of other persons were violated, the deed of gift will be considered illegal.

After the court decision is made, restitution of the transaction takes place. Each of the parties to the agreement must return the property to its rightful owner.

Gift transaction with the participation of legal entities not engaged in commerce

Non-profit organizations are supported by donations. Therefore, the signing of a deed of gift and the transfer of ownership rights is allowed only if the transferred object belongs to the economic entity.

Not every business entity can transfer part of the donations. Therefore, before writing a contract, you need to take this point into account.

When a document is invalid, watch the video:

Procedure for registering a transaction

For a deed of gift to be recognized as legal, the following conditions must be met:

• participants must reach agreement on all points of the agreement

• 
  the business entity transferring ownership of the object collects documentation for it

• To sign the agreement, its participants must go to the notary, where it will subsequently be registered
• if the transferred object requires registration of ownership rights, then the recipient must go to the MFC or Rosreestr to carry out the transfer of ownership rights

Agreement on gratuitous transfer of property - sample

To summarize what has been said, we can come to the conclusion that the gratuitous transfer of property between legal entities has two main forms: donation, i.e. the thing is transferred free of charge and irrevocably, and transfer for temporary free use (loan).

Good to know! If the parties to the transaction are commercial organizations, then donation between them is prohibited by law in order to protect their creditors, founders, and property owners.

If there is a need for a gratuitous transfer of property between commercial organizations, then it is necessary to conclude a loan agreement, in which it is indicated that the thing is transferred to the other party for temporary possession and use. The loan may have a perpetual nature. The ownership of the transferred item remains with the transferring party.

In all other cases, the parties are independently free to choose the type of agreement - donation or loan.

Didn't find the answer to your question? Find out how to solve exactly your problem - call right now: +7 (Moscow) +7 (812) 309-53-42 (St. Petersburg) It's fast and free!

Giving as a type of charity

Charity refers to the selfless transfer of property. Eg:

• transfer of funds
• assignment of intellectual property rights
• provision of service
• work of a certain nature, etc.

According to regulatory documents, the goals of charitable events may be:

• providing assistance to vulnerable segments of the country's population
• providing assistance to citizens who became participants in natural disasters and man-made incidents
• donations to protect flora, fauna, etc.

In accordance with the requirements of the law, legal entities can independently choose the form and purpose of a charitable donation. A legal entity can engage in charity on an individual basis. Business entities can also create a charitable organization.

Example of a gift agreement

At the legislative level, the form of agreement between companies has not been approved. When writing the text of the agreement, you should adhere to certain recommendations:

• name of legal entities concluding a gift transaction

• 
  Full name, details of civil passports of citizens authorized to represent the interests of the legal entity, the document must also contain information on the basis of which the representatives act

• the item for which ownership is transferred (housing, vehicle, equipment, etc.), its market price is also indicated to determine the tax rate
• the moment the agreement enters into legal force (for example, from the moment of signing)
• grounds on which the agreement is canceled, methodology for cancellation

At the bottom of the agreement, the participants put their signatures and the date of execution. Next, the documentation is certified by a notary.

Registration procedure

Donations between companies and organizations follow general rules. To begin with, the parties negotiate and determine the terms of the future transaction. At this stage, legal representatives of each party take part. They can be employees of organizations, as well as external specialists involved. After this, a draft agreement is drawn up. The parties can do this independently or with the assistance of a qualified lawyer.

The text must indicate the following:

1. Date and place of signing.
2. Details of each participant. The name of the organizations, information about their representatives, as well as the powers of attorney on the basis of which each of them acts is indicated here.
3. Detailed description of the subject of the transaction. Its appearance, volume. The purposes for using the property are not specified.
4. Date and order of gift transfer.
5. The duration of the agreement and the moment it comes into force.
6. Details and signatures of the parties.

We invite you to read: Is an employer obligated to enter into a collective agreement?

The agreement is signed by the heads of organizations or their authorized officials. In some cases, the transaction must be registered, for example, if the gift is real estate. However, this rule does not apply to commercial organizations, since the cost of the item cannot exceed three thousand rubles. The price of any real estate is much higher.

Taxes when registering a gift

The amount of tax depends on the taxation used by the parties to the transaction. The market price of the object being donated is also important. For example, if a company applies OSN, it will need to pay VAT. The recipient of the gift is obliged to transfer tax on non-operating income to the budget.

The costs of the parties to the transaction incurred during its execution are not taken into account. It is not possible to reduce the tax amount by the amount of expenses.

Legislators have determined a list of legal entities exempt from transferring tax to the country's budget when registering a deed of gift:

• entities whose authorized capital includes at least ½ of the money supply of the legal entity receiving the gift
• legal entities that have contributed at least ½ of the available money supply to the authorized capital of the organization making the donation

Subjects whose work is not based on making a profit can draw up a deed of gift. As a result of the transaction, the object becomes the property of the legal entity accepting the gift. Further repair work and maintenance of the facility are paid for by the new owner.

How to draw up a gift agreement from a legal entity to a legal entity?

A gift agreement between legal entities can be drawn up, but with some restrictions. It all depends on the form of activity of the enterprise - commercial or non-profit. Let's consider who is recognized as a legal entity when donation is prohibited, as well as taxation features, accounting entries, step-by-step algorithm of actions and consequences of violating the prohibition.

Legal entity: concept, features

(click to open)

According to Article 48 of the Civil Code of the Russian Federation, a legal entity (hereinafter - LE) is an organization that owns property and is responsible for its obligations. Also, the company must maintain accounting records and have constituent documents. A prerequisite is registration in the Unified State Register of Legal Entities, this is done through the Federal Tax Service.

Public and private institutions are recognized as legal entities.

In turn, depending on the type of activity, they are divided into two types:

• commercial: LLC, CJSC, PJSC, etc., engaged in commercial activities and making a profit;
• non-profit: public associations, foundations, cooperatives, state companies, political parties, communities, religious associations (making a profit is not their goal).

Gifting between legal entities has a number of features and is not always permitted. Let's consider all the subtleties in detail.

When is a gift between legal entities prohibited?

According to paragraphs. 4 clause 1 art. 575 of the Civil Code of the Russian Federation, donation between two organizations conducting commercial activities is prohibited. The exception is inexpensive gifts worth up to 3,000 rubles: you can give them.

When is it possible to transfer a gift between legal entities:

• between non-profit and commercial enterprises;
• between non-profit legal entities.

Commercial legal entities can make free transactions. For example, draw up a loan agreement for free use (Chapter 36 of the Civil Code of the Russian Federation), if they do not contradict the essence of the transaction.

The ban is due to the fact that some institutions may try to cover up a compensated transaction with a gift agreement in order to avoid paying taxes: according to paragraph 3.8 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation, income received as a result of gratuitous assistance is not taken into account when determining the taxable base.

According to the law, compensated transactions disguised as donations are recognized as sham. Interested parties have the right to challenge them in court, referring to clause 2 of Art. 170 Civil Code of the Russian Federation. As a result, the recipient undertakes to return the donated property to the donor.

Important! The transfer of property between legal entities is not always recognized as a gift. For example, one organization can make a contribution to the authorized capital of another, and this is not considered a gratuitous transaction: such actions are possible as part of an investment, or when the composition of the founders changes.

Taxation of gifts between legal entities

If a commercial organization donates property (money, car, real estate, goods, finished products) under a gift agreement (hereinafter referred to as DD) to a non-profit organization or vice versa, VAT is required to be paid. The rate is determined based on the market value of the gift.

The recipients are required to pay corporate income tax, and the gift is accounted for as unrealized income. When calculating tax, you need to focus on the market value of the donated property. It is confirmed by an appraisal report or checks.

When do you not need to pay income tax?

This tax is not paid if the donor’s authorized capital consists of at least 50% of the donee’s contribution, or vice versa, when the donee’s capital is formed 50% from the donor’s funds.

The parties are exempt from taxation in other situations:

• the gift is intended to ensure the safe operation of nuclear power plants;
• a donation agreement has been concluded; the transaction is of a charitable nature.

The tax is not paid if the property is transferred to the balance sheet of a subsidiary company.

Accounting entries

Having donated property to another legal entity, the organization needs to write it off from its balance sheet.

This will require accounting entries:

1. First, the original cost of the gift is written off. Posting – “Debit account 01, subaccount “disposal of fixed assets, credit 01”.
2. Stopping depreciation from the next month. For write-off, indicate “Debit account 02, credit account 01.”
3. Entering other expenses in accounting. This is recognized as the residual value of the gift, written off according to the entry: “Debit to account 91.2, credit 01.”

Important! If additional expenses arose when transferring a gift (transportation, packaging, etc.), this is reflected in “other expenses” by posting “debit to account 91.2, credit 01.”

Rules for donation between legal entities

First of all, you need to make sure that there is no ban on the transaction.

It is further recommended to follow the following rules:

1. It is allowed to draw up a donation agreement between legal entities if the recipient carries out activities in the medical, educational, social, charitable, cultural, religious sphere (Article 582 of the Civil Code of the Russian Federation). This is one of the forms of donation, but if the donor and recipient are a commercial institution, the amount still cannot exceed 3,000 rubles.
2. If the donated item belongs to the legal entity by right of economic or operational management, the owner’s consent to the transaction will be required (Article 576 of the Civil Code of the Russian Federation).
3. According to the DD, it is permissible to grant the right to claim a debt to the donee, but with prior notification to the debtor.
4. The donor has the right to assume obligations to a third party under the DD, but the transaction will need to be agreed upon with the creditor.

It is important to take into account that a donation by a business entity is disputed by creditors if the transaction was completed in the last 3 years prior to the donor filing a bankruptcy petition (Clause 3 of Article 578 of the Civil Code of the Russian Federation).

When is the best time to draw up a donation agreement?

A donation is a transaction made for socially beneficial purposes. It is possible between legal entities, the key condition being gratuitousness. The advantage of such a transaction is the absence of the donor’s obligation to pay VAT (Article 149 of the Tax Code of the Russian Federation).

Commercial organizations have the right to donate amounts or property to each other, the value of which does not exceed 5 minimum wages. If the donation is made between NPOs, this rule does not apply.

Several features are relevant for donations:

• no consent or permission required;
• the donor has the right to indicate for what purposes the gift is intended and how to use it;
• the organization that accepted the donation undertakes to keep records of transactions using the donated property if the donor has previously determined its purpose;
• the donor has the right to cancel the transaction if the gift is used for other purposes.

Drawing up a donation agreement is relevant if the parties want to avoid taxation, and the gift is intended for generally beneficial needs and purposes.

How to draw up a gift agreement between legal entities: step-by-step instructions

According to Art. 574 of the Civil Code of the Russian Federation, giving a gift worth up to 3,000 rubles. done orally. Expensive items are donated under a written agreement.

The procedure consists of several stages:

1. The deal is agreed upon by the parties. The recipient has the right to refuse the gift, so his consent is important.
2. Drawing up a written DD.
3. Notarization of the deed of gift.
4. Removal of donated property from the balance sheet of the donor institution.
5. Registration of ownership of the donee.

Let's look at each step in detail.

Step 1: approval of the deal

The parties need to agree on what kind of gift will be given. The initial decision on the transaction is made by the donor; only consent is required from the recipient.

You can donate any property that belongs to the donor by right of ownership:

• money;
• automobile;
• real estate;
• share in the authorized capital.

Important! If the organization has several owners and the charter provides for the alienation of property by prior agreement, you need to hold a meeting and listen to the opinions of the founders. Based on the results, a protocol is drawn up and a person is appointed to act on behalf of the company. A decision will be required from the sole founder.

Sample solution

The document must contain complete information about the owners and donee:

• name of the organization, full name, passport details of the founders;
• a reference to the desire to make a gift to a specific person;
• information about the gift: name, value, details of documents confirming ownership;
• signatures of participants.

Sample decision on donating a share in the authorized capital:

LLC decision on donation –

Step 2: execution of the contract

After the company participants resolve issues regarding the transaction, a deed of gift is drawn up in writing. If a share in the authorized capital is given, a notarization will be required.

The duty is 0.5% of the value of the share, but not less than 300 and not more than 20,000 rubles.

The personal presence of the parties at the time of signing the DD is mandatory, otherwise a notarized power of attorney will be required for another person who will act in the interests of the donor or donee.

One attorney does not have the right to represent the interests of two parties at the same time.

Sample contract

When registering a DD, information about:

• parties to the transaction: full name, name and address of the legal entity, passport data, information from the Unified State Register of Legal Entities;
• gift: value, name (car, real estate, etc.), details of property documents;
• resolution and minutes drawn up based on the results of the general meeting.

At the end there is a date of registration and signatures of the parties. The DD is drawn up in three copies: one each remains with the donor and the donee, the third is transferred to the notary. If the transaction is subject to state registration, a fourth copy will be required and submitted to the registrar.

Sample gift agreement between legal entities:

Donation agreement between legal entities – download form

Documentation

To complete the DD, you will need all the documents related to the transaction:

• decision of the founders;
• documents for donated property;
• passports of the parties;
• registration documents of the organization;
• consent of the actual owner.

Step 3: making changes to organization documents

After signing the DD, you need to remove the donated property from the balance sheet of the enterprise and draw up accounting documents.

Step 4: re-registration of ownership

When donating a car, it is enough to indicate the new owner in the title and re-register everything with the traffic police. If real estate is a gift, both parties need to appear at the MFC or Rosreestr to submit documents to re-register ownership of the donee.

The transaction is registered in Rosreestr within 10 days. Based on the results, an extract from the Unified State Register is issued, where the donee is indicated as the new owner.

Consequences of donation between commercial organizations

According to paragraph 1 of Art. 168 of the Civil Code of the Russian Federation, a transaction made in violation of the prohibition on donations between enterprises engaged in commercial activities is recognized as voidable.

The consequences of invalidity of transactions apply to it. The gift is transferred to the recipient, the DD is declared invalid.

The donor, the donee or a third party whose interests are violated by the transaction have the right to file a claim to challenge the DD.

Arbitrage practice

The practice of challenging DD and other gratuitous transactions between legal entities is small, but there are several examples of court documents confirming the real effect of the ban:

Expert opinion

Let's summarize:

1. Donation between legal entities is permitted if both parties or one of them is engaged in non-profit activities.
2. Transfer of property as a gift between commercial legal entities is prohibited.
3. A legal entity is an enterprise registered with the Federal Tax Service in accordance with the established procedure and having property on its balance sheet that maintains accounting records. A legal entity can engage in commercial or non-profit activities;
4. To give a gift from one legal entity to another, you will need a decision from the owners or the sole founder, execution of a written deed of gift and registration of the transaction.
5. Violation of the prohibition condition is contested in court, the consequence is the recognition of the DD as invalid and the return of the gift to the old owner (donor).

Lawyer. 12 years of experience. Specialization: family and inheritance law. If you have any questions, ask our lawyers using the feedback form on the website. They will respond as soon as possible and advise you on any problem!

Lawyer's answers to popular questions

Can individual entrepreneurs give gifts to each other if they conduct commercial activities? No. The activities of individual entrepreneurs are based on making a profit, so donation is prohibited.

I am the only founder of an LLC, I want to give gifts to the best employee - household appliances. Is a written deed of gift required? Yes, if the cost of the equipment exceeds RUB 3,000.

I manage an LLC and would like to give a gift to the head of a branch of one of the banks. Is this legally possible? No, and there are two reasons for this: banks and LLCs are commercial organizations. In addition, according to Art. 575 of the Civil Code of the Russian Federation, gifts to bank employees are allowed only as part of official events.

Does a foreign organization have the right to donate property to a Russian one? Yes. There is no ban on relations between foreign and Russian enterprises, but there are increased tax rates on transactions.

Can a company buy medical equipment and donate it to a municipal hospital under an agreement? Yes, because The activities of state and municipal institutions are not aimed at making a profit.

Didn’t find the answer to your question? Find out how to solve your particular problem - write your question right now (it’s fast and free) Legal advice is free for site visitors! Lawyer. 2 years of experience. I specialize in civil disputes in the field of family law.

Source: https://SocPrav.ru/dogovor-dareniya-mezhdu-yuridicheskimi-licami

Transactions substituting a gift

Today, the following examples of transactions recognized as illegal by a court decision are known:

• The case of the irrevocable transfer of part of the charter capital to another legal entity was recognized by a court decision as a donation, which resulted in the nullity of the transaction.

• 
  According to the assignment agreement, the transaction will be considered illegal if the amount of payment for the transferred powers is much lower than their market price.

• A purchase and sale transaction is considered illegal if the text of the agreement contains a clause requiring payment for the transferred property before formalizing the contractual relationship. At the same time, there is no payment itself, which proves that economic entities are not going to carry out mutual settlements.
• The transaction of assignment of powers and obligations when signing an agreement to lease a land plot was declared illegal due to the fact that the transfer was free of charge.
• Under the purchase and sale agreement, the affiliated entities failed to fulfill their obligations under the contract after receiving the property. In this regard, the court recognized actions covering up the donation.

Reversal of the agreement

The grounds on which the transferred object is confiscated from the donee are determined by Art. 578 civil legislation. To protect the interests of creditors, the authorities have provided for the return of transferred property in the event that the transaction was formalized without fulfilling the requirements of the insolvency law.

If a subject has donated property acquired from profits received within six months before bankruptcy, then creditors may require the court to declare the transaction unlawful.

Thus, any donations between business entities of a commercial nature for an amount greater than 3 thousand rubles. will be declared illegal. But business entities can use donations and charity. If the cost of the transferred object is more than 3 thousand rubles, then the parties must enter into an agreement in writing.

Top

Write your question in the form below

Transferring a gift to an individual

A gift agreement made from a legal entity in favor of a citizen will be completely legal, regardless of the direction of activity and the statutory goals of the organization. Yes, legal. a person can transfer any type of property in favor of an individual. persons under a gift agreement, if such an agreement is gratuitous in nature and does not provide for reciprocal obligations or representations on the part of the donee citizen (Article 572 of the Civil Code). Otherwise, the deed of gift should be considered feigned, which entails its insignificance (Article 170 of the Civil Code)

Attention

According to paragraph 2

Art. 574 GK

, if the value of a gift from an organization in favor of a citizen exceeds 3 thousand rubles, the gift agreement must be drawn up in

writing

. Violation of this rule entails

insignificance

transactions.

What's interesting is Art. 161 of the Civil Code, requires the conclusion of a written agreement in each case of transactions by a legal entity.

According to paragraphs 2, 3 of Art. 575 of the Civil Code, legal entities cannot make gifts in favor of citizens in state and municipal service, as well as in favor of employees of educational, medical and other social institutions.

If the donee citizen is incapacitated due to age or a court decision, then in a transaction of donation from a legal entity, his interests must be represented by his legal representative (parent, guardian) (Articles 28, 29 of the Civil Code). Participation in a transaction by a minor citizen is permissible with the written consent of his legal representatives (Article 26 of the Civil Code).

As a general rule, income received by citizens in kind or in cash as a gift (except for real estate, vehicles, stocks, shares and shares) is exempt from taxation. However, such an exemption applies if the donor is an individual (clause 18.1 of Article 217 of the Tax Code). Thus, if a citizen receives a gift from an organization, he has the obligation to pay 13% personal income tax on the market value of property exceeding 4 thousand rubles (clause 28 of article 217 of the Tax Code).

Notarization of deed of gift between legal entities. person and citizen is not obligatory, but may well be carried out at their request. Certification of the contract will make it possible to verify the legality of the transaction and whether the parties have the rights to complete it (Article 163 of the Civil Code).

It is difficult to build gratuitous relationships between organizations, so the gift agreement has more prohibitions than workarounds. Otherwise, transactions are carried out according to the legal principle. person – an individual. Russian legislation does not restrict entrepreneurs from transferring property rights. The only condition is to carry out gift relationships within the framework of the articles of the Civil Code of the Russian Federation.

We invite you to familiarize yourself with: Assignment of rights under an agreement of shared participation in construction, registration and documents

The subject of a gift agreement can be any object. The list of transferred property benefits is voluminous, but must be presented. Legal entities have the right to donate the following objects to citizens:

1. Real estate (non-residential premises, land plots).
2. Equipment (any type from tools to machines).
3. Vehicle.
4. Financial investments (money, shares).
5. Other valuable benefits.

The subject of a gift agreement cannot be:

1. Weapons and military equipment.
2. Some types of natural resources.
3. Toxic substances.
4. Relics and museum exhibits.

The value of a gift, from the point of view of criminal law, does not matter, unlike a gift presented to a legal entity. Its price range is limited to the upper limit - 3,000 rubles.

A gift agreement is not always drawn up when an organization transfers property to an ordinary citizen. This option is used during a transaction if the cost of the item is less than three thousand. In other situations, proceed according to the established protocol:

• the legal entity draws up the text of the deed of gift;
• transferred to the donee;
• an individual pays a tax fee;
• if necessary, the citizen goes through the procedure of re-registration of the property.