Donation between legal entities is prohibited

What is a gift deed?

A gift agreement is a document executed by the donor in favor of the donee. Through its conclusion, property is transferred free of charge.

The formal transfer of an item as a gift without further legal consequences (actual donation) is not allowed - such a transaction is considered imaginary and recognized as void. It is also prohibited to make a gift for the purpose of covering up another transaction (Article 170 of the Civil Code of the Russian Federation).

The legislative features of the gift agreement are regulated by the following norms:

Donation between commercial organizations

According to Article 575 of the Civil Code of the Russian Federation, donation in this case is absolutely prohibited. This is connected with the very essence of a commercial organization: its main goal is to make a profit, and donation implies a gratuitous transfer, which is essentially absolutely illogical for a company whose goal is to earn money. Therefore, a simple transfer of property in this case can easily be declared invalid by the court.

However, in some cases it is still possible to transfer a gift. This is due to very controversial judicial practice. There are three main methods, each of which carries risks and can be declared illegal at any time:

• Contribution. The most popular form of “donation”. A contribution involves the transfer of material goods with their subsequent return and profit. Therefore, most often this form of transfer of property is used between organizations, since, in fact, it is not gratuitous and does not fall under the definition of donation;
• Transfer of material assets to a subsidiary. The most complex way to transfer material wealth, operating only within large companies. To carry out this operation, according to the law, a lot of subtleties will need to be observed: for example, the company must have certain obligations to the subsidiary, according to which the transfer of material goods will take place;
• A deal with unequal terms. In fact, this is the most ordinary transaction, the terms of which will be largely unequal. The organization transferring the benefits simply offers the terms under which the receiving organization receives those benefits by giving something of unequal value in return. Often such transactions are canceled, but nevertheless they are not at all uncommon.

Warning

Please note that the methods described above are not entirely correct from a legal point of view, and in some cases are not legal at all. They operate only due to the fact that the concept of “donation” is too strict and it is easy to use it to your advantage. None of the methods described can provide any guarantees, and the transfer itself may be challenged in court.

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.

Is it possible to give money under a gift agreement?

Money can serve as a gift, since the Civil Code of the Russian Federation (Clause 2, Article 130) regards it as a thing constituting movable property. When the owner of such property changes, it is not necessary to re-register ownership, i.e. it can be transferred as a gift according to a simplified option.

The disinterested transfer of money is prohibited by law only in a limited number of cases (Article 575 of the Civil Code of the Russian Federation). These are situations of donation in the amount of more than 3 thousand rubles, when the gift:

• on behalf of a minor or incapacitated person is made by his representative;
• made to an employee of an educational, medical or social service organization by a person served by such an organization or his relatives;
• intended for a civil servant in connection with his official duties;
• makes a legal entity of a commercial nature to another legal entity also engaged in commerce.

Read about possible options for gratuitous relations between legal entities in the article “What are gratuitous agreements between legal entities?”

Thus, with the above exceptions, donation between individuals, as well as from a legal entity to an individual, has no legislative obstacles. Children have the right to receive gifts from the age of 6, since the Civil Code of the Russian Federation (subclause 2, clause 2, article 28) allows them to participate in transactions that bring gratuitous benefits and do not require notarization or state registration. And children aged 14 to 18 years can become donors themselves, since they have the opportunity to manage personal income (subclause 1, clause 2, article 26 of the Civil Code of the Russian Federation).

Income generated by an individual who is the recipient of donated money is not subject to personal income tax if the donor is:

• by an individual - regardless of the amount of the donated amount (clause 18.1 of Article 217 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated May 16, 2018 No. 03-04-05/32813);
• a legal entity or individual entrepreneur, and the amount donated to them does not exceed 4 thousand rubles. (clause 28 of article 217 of the Tax Code of the Russian Federation).

Amount over 4 thousand rubles. when donated by a legal entity or individual entrepreneur, the recipient-individual will be subject to income tax at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).

For information on organizing gift accounting for such situations, read the material “When to pay personal income tax on gifts?”

Features of transactions of commercial and non-profit organizations

As mentioned earlier, commercial enterprises can give each other gifts worth no more than 3,000 rubles. NPOs have much greater rights when making a gift, but it is worth considering that if the price of an item exceeds 5 minimum wages, an agreement must be concluded.

Expert commentary

Kolesnikova Anna

Lawyer

The document can indicate the condition for the immediate transfer of the gift, the intention to transfer it in the future, or make a gift upon the occurrence of certain circumstances.

Donation between non-profit organizations

This form of donation is very complex. This is due to the fact that the vast majority of non-profit organizations are supported by donations from outside. In this case, a classic donation can only be formalized if the property being donated belongs to the organization itself. In all cases, a donation will be required. However, not every non-profit organization has the right to transfer donations, which will also need to be taken into account when drawing up an agreement.

The procedure for registering a deed of gift

The whole procedure looks like this:

1. The parties agree on the terms of the transaction.
2. The donor collects documents for the donated property.
3. Both parties visit the notary and sign the deed of gift.
4. The donee or his representative registers the property with Rosreestr or the MFC, after which he becomes the full owner.

When visiting a notary's office, you must provide an application, constituent documents of both companies, passports and powers of attorney for representatives, as well as materials confirming ownership of the subject of the gift.

How is a gift transferred from a legal entity to an individual?

If the value of a gift transferred by a legal entity does not exceed three thousand rubles, then the donation can be carried out in the same way as when transferred from one individual to another, that is, without drawing up a gift agreement. However, if a gift from a legal entity is worth more than three thousand, then under any circumstances it will be necessary to draw up a gift agreement and carry out a legal transfer of property. In general, this procedure occurs in three stages:

1. A legal entity draws up and transfers a gift agreement to a citizen;
2. The citizen pays the tax;
3. The citizen carries out registration actions (if necessary) and takes ownership.

Let's look at each stage in more detail.

Sample deed of gift

There is no unified form of a gift agreement, but it must contain the following information:

• The name of the organizations between which the transaction is being carried out.
• FULL NAME. and passport data of enterprise representatives, on the basis of which they act.
• Subject of donation: apartment, car and other property indicating the market value (needed for calculating tax).
• When does the deed of gift come into force: after signing, on a certain date, etc.
• Under what conditions can the contract be cancelled, the cancellation procedure.

At the end, the signatures of the enterprise representatives and the date of conclusion are placed, after which the document is certified by a notary.

legal entities

Legal consequences of prohibitions and restrictions

When concluding a donation prohibited by law, the transaction is considered void . The main consequence of its conclusion will be that the parties to the contract will not have any rights under it. The property will not receive a new owner under any circumstances.

If one of the parties applies to Rosreestr (when donating real estate, for example), the property of the donee will not be registered, and the rights to the real estate will not be transferred to the new owner.

If a deed of gift is concluded without the consent of people who have the right to do so , it will be declared invalid from the very moment of its execution. In this situation, the donee will either have to give the donated item to the previous owner or seek such consent in order to legitimize the donation transaction.

Judicial practice confirms these conclusions . For example, the Moscow City Court invalidated a land donation transaction. The court found that the donated land plot belonged by right of common ownership to citizens V., K. and O. Moreover, the decision to transfer it as a gift to the defendant was made only by citizen O. He did not notify the remaining owners and did not receive permission. Thus, citizens V. and K. went to court with a demand to cancel this transaction as concluded in violation of the requirements of the law. The court satisfied their demands.