Features of donating shares and the procedure for executing the agreement

A share donation agreement formalizes civil legal relations related to the gratuitous transfer of ownership of securities from the donor to the recipient. Files in .DOC: Form of agreement for donation of sharesSample agreement for donation of shares

The peculiarities of the share gift agreement are determined by the peculiarities of the shares themselves as issue-grade securities, giving the owner the right to use them either to receive dividends or to confirm ownership of part of the issuer’s property.

Parties to the gift agreement

When concluding a share donation agreement, the degree of relationship between the persons participating in the share donation transaction is of great importance. Therefore, it is advisable to remember the levels of kinship relationships.

Thus, the Family Code includes mother, father, and children as close relatives of the first degree, and children can be natural and/or adopted.

Spouses who are in a registered marriage are not classified as relatives.

The next level of relationship includes siblings and grandparents. The third degree is uncles and aunts, cousins ​​and brothers. Great-grandparents can be identified by the fourth degree of relationship, the same cousins ​​by the fifth.

The importance of the fact of family relations when concluding a share donation agreement is related to the terms of payment of state fees, notary fees and personal income tax. In case of closely related gift agreements, the parties are exempt from the need to pay the above payments.

Donation of bonds and immobilized mortgages

Securities such as bonds or immobilized documentary mortgages are also transferred by performing two actions: concluding a gift agreement and making an entry in the register. But the records of bonds are not maintained by the registrar, but by another person - the depositary.

If you don't know the depository you need, download their official list.

A list of depositories indicating the legal entities whose bonds they take into account is also available on the website of the Central Bank of the Russian Federation.

To transfer securities in this case, the donee needs a securities account with the same or another depository.

The transfer procedure is slightly different from shares. To write off the donor's deposit account, a gift agreement is sufficient. But in order to be credited to the donee’s depository account, a special order of the donee will be required (Part 5, Article 7 of the Law on the Securities Market, Clause 5.5 of the Basic Standard for Depository Operations..., agreed upon by the Standards Committee for Depository Activities, Minutes dated November 16, 2017 No. KDP -9).

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What documents are needed to formalize a deed of gift for shares?

A share donation agreement, like any other agreement, must be documented, and both the identities of the parties to the agreement and the donor’s ownership of the securities being donated must be confirmed.

Therefore, the contract must reflect the following documents and documentary information:

• valid passports or identity cards of persons participating in the transaction;
• personal details with reference to registration at the place of residence;
• TIN of the donor and donee;
• share owner certificate;
• notarized order for the transfer of shares.

If shares are given to a minor, then at the request of government agencies the following written approvals from parents, relatives or guardians must be submitted:

• consent of the father, mother, and in the absence of such, the persons exercising guardianship over the minor child;
• coordination with the guardianship authorities.

For shares acquired during an official marriage, the consent of both spouses is required for their donation.

Data of the parties to the agreement

The document confirming the donation of real estate must indicate the following information.

• Full name of each party, passport details, registration addresses.
• Characteristics of the property indicated in the floor plan, explications.
• Gift location address.
• Cadastral, inventory numbers.
• Plot area, square footage of the apartment.

It is also indicated on what basis the donor can be considered the copyright holder of this real estate. He could donate the object:

• privatize;
• buy;
• inherit;
• receive in the form of the same gift.

The data of this title document is indicated. A deed of gift relating to real estate can only be drawn up in writing and, at the request of the parties, notarized.

The sequence of donating shares to relatives

Signing of the contract and transfer of shares is carried out only in notary offices. This gives guarantees to the parties to the transaction that the lost document will be restored.

The registration procedure consists of the following sequence of actions:

1. First, a gift agreement is drawn up and signed by the parties and the notary. After registration at the notary office, the contract comes into force.
2. Documents attached to the agreement are being prepared.
3. A form is filled out with the passport details of the citizen receiving the shares.
4. Data on the new owner of shares is added to the register of shareholders and appropriate additions and changes are made. The adjustment is made on the basis of the gift agreement, the transfer order and a written agreement on the acceptance of shares by the donee.
5. Information about the transaction is entered into the state register of shareholders.
6. The donee receives a certificate of state registration of ownership of securities.

Payment of taxes on gifts from organizations

The tax payment deadline is no later than the day following the day of delivery of the gift in cash.

But if a gift worth more than 4,000 rubles is given by an organization in kind (for example, in the form of souvenirs, jewelry, expensive bouquets, etc.), the tax must be withheld on the day of payment of the next salary (clause 4 of article 226 of the Tax Code of the Russian Federation) .

If for some reason the organization was unable to withhold and transfer personal income tax on the value of the gift over 4,000 rubles, then the income thus received is declared and paid by the personal income tax by the recipient himself, and not by the donor organization.

This is possible, in particular, in cases where an organization gave an expensive gift to an individual, but subsequently did not make any payments (salaries, bonuses, etc.) in his favor during the tax period.

In such situations, the organization will have to notify the Federal Tax Service and the taxpayer in writing about the impossibility of withholding personal income tax and the amount of tax payable on the gift given.

To do this, a 2-NDFL certificate with attribute 2 is sent to the Federal Tax Service Inspectorate and the individual. The deadline for sending such a certificate is no later than March 1 of the year following the expired tax period in which the relevant circumstances arose (clause 5 of Article 226 of the Tax Code of the Russian Federation).

If, before the end of the tax period, the organization nevertheless pays the taxpayer any money, it will be obliged to withhold tax from it, taking into account amounts not previously withheld. After the end of the tax period and a written notification of the impossibility of withholding personal income tax, the obligation to pay is assigned to the individual (letter of the Federal Tax Service dated August 22, 2014 No. SA-4-7/16692).

That is, by sending a 2-NDFL certificate with sign 2, the organization is relieved of the duties of a tax agent in terms of withholding and paying personal income tax on a gift given to an individual. Personal income tax will be paid by the taxpayer who received the gift, based on the notification sent to him by the Federal Tax Service. In this case, the individual will have to pay personal income tax no later than July 15 of the year that follows the year the gift was received (clause 4 of article 228 of the Tax Code of the Russian Federation).

Characteristics of the contract

A gift transaction involves the transfer of shares free of charge and without return. It is necessary to confirm the legal capacity of the persons involved in the donation process. Actions of legal entities to donate shares are limited by law. Contracts for interstate gift procedures are regulated by special articles of the Civil Code.

The donee's refusal to accept shares must be made before the end of the contract registration.

Unless otherwise provided in the agreement, property rights to shares are not inherited. At the same time, the donor's contractual obligations may be assigned to his heirs.

The price of the donated shares is not significant, nor is the term of the contractual relationship.

What is donation

According to the law of the Civil Code of the Russian Federation, Article 572, the following is considered a donation.

Free transfer of property

If you give something to someone out of your heart without asking for anything in return, that is a gift. And it doesn’t matter whether it’s a mug with a funny inscription or a cottage on the shore of a lake. The only difference is how it is formatted. In most cases, it is enough to verbally announce the intention and hand over the gift itself, or documents for it, or its symbolic designation, such as keys. There are two exceptions when it is necessary to conclude a written gift agreement:

1. When transferring real estate. The transfer of ownership from one owner to another must be registered with Rosreestr, for which papers will be needed.
2. If a legal entity gives something more expensive than 3 thousand rubles.

There is no legal requirement to issue a deed of gift for a car. But you will have to do this too. The papers will be useful for re-registration of transport to the recipient at the traffic police. Although, in general, it is always good to somehow record the fact of donation when we are talking about something valuable. Evidence may be required if any disputes arise. For example, a grandmother gave her granddaughter earrings with diamonds, and then forgot about it and accused her of theft. Evidence will help restore an honest name.

In addition, the gift must be made disinterestedly, otherwise the transaction will be considered void. So, sometimes when selling a share in an apartment (for example, a room in a communal apartment), the seller does not want to collect refusals from the remaining owners and instead of a purchase and sale agreement offers a gift agreement. And buyers simply give him money against a receipt. Interested parties like neighbors can easily challenge the deal.

Promise of a gift in the future

Let's say a grandmother is going to sign over her apartment to her grandson when he turns 18. Words cease to be empty chatter and become promises that must be fulfilled by law. But only if everything was formalized in writing: for promises, it is necessary to sign a gift agreement.

In addition, there are several conditions:

• You need to give something specific. You cannot write “everything that is mine is now yours”; it will not have legal force.
• A gift cannot be promised to pass to the recipient upon the death of the current owner. For such cases, there is a will. Therefore, the agreement will be considered unconcluded.
• You cannot promise a gift in exchange for the performance of any services or obligations. He must be selfless. If a grandmother wants her grandson to look after her, and only then will he get the property, this is not a gift.

If the donor does not live to see the day when he promised to give the gift, his heirs will have to do this. When the recipient dies first, the gift does not need to be transferred to anyone else—unless otherwise specified in the contract.

Exemption from property obligations

If you forgive a debt or undertake an obligation to pay it for someone to a third party, this is formalized by a gift agreement, and it must be in writing. For example, if you decide to repay your retired mother’s loan, this is your case. And, again, your impulse must be selfless.

What taxes do you need to pay?

When concluding a share gift agreement between relatives, the recipient will not have to pay income tax. However, he will have to fill out a tax return and submit it to the tax authority at his place of residence.

Commercial enterprises that received shares as a gift under a gift agreement classify them as non-operating income in their accounting statements. The value of shares that a non-profit organization gives to a citizen is not deducted from taxable profits.

An individual who has received shares worth less than four thousand rubles from a legal entity is not required to pay personal income tax.

If there is no relationship based on mutual benefit between the citizen and the donor, then taxes are paid by the donee. In partnerships between the parties to the transaction, this is the responsibility of the donor.

Features of donating shares in CJSC and OJSC

Shares are securities that confirm the right of their owners to participate in the life of a joint stock company (JSC) and receive income from its activities.

Shares can be donated under a gift agreement (hereinafter referred to as DD), taking into account several features:

1. Shares can be either documentary or non-documentary. In the first case, it is enough to transfer them to the donee; in the second, it is necessary to draw up a written DD.
2. When donating registered shares, a personal endorsement is required.
3. If uncertificated shares are given, the rights guaranteed to their owner are transferred to the donee.
4. The DD cannot indicate the transfer of papers to the donee after the death of the donor - the transaction is considered void, it is better to draw up a will (Article 572 of the Civil Code of the Russian Federation).

Important! Shares can be transferred either after signing the agreement or after some time. The law allows for the execution of a contract of promise of a gift, the execution of which begins on a certain date or event specified by the donor.

Are shareholders given priority rights when making a gift to a third party?

According to Art. 41 Federal Law No. 208-FZ dated December 26, 1995, when alienating securities, other shareholders must be notified in the prescribed manner, and they are given a pre-emptive right to purchase.

This rule applies only to paid transactions. The donation is free of charge, so other shareholders will not be able to take advantage.

Some, instead of a purchase and sale agreement, draw up a deed of gift to transfer shares to a third party, bypassing the remaining shareholders.

It is important to take into account that such a transaction may be considered sham on the basis of Art. 170 of the Civil Code of the Russian Federation, i.e. concluded to cover up another transaction.

Legal advice: if you need to sell valuables, it is better to draw up a purchase and sale agreement and not try to deceive others. If an interested person learns of a violation of his rights to pre-emptive purchase, it is possible to challenge the transaction in court, but he will have to prove the fact that the donor received the money.