In our last article, we talked about the prohibition of registering a deed of gift between legal entities, and today we want to reveal one of the most discussed topics - the donation of household appliances in 2021, having considered the most economical legal ways of transferring such property and the negative features of the transaction, ignoring which can lead to grounds for cancellation of the agreement.
With you, as always, is a practicing lawyer and the author of the column on the gift agreement – Oleg Ustinov and the team of the “Legal Ambulance” website.
Registration of donation between a legal entity and an individual
A gift between an organization and an individual, as a general rule, is formalized by a gift agreement (Article 572 of the Civil Code). According to it, the organization transfers free of charge or undertakes to transfer any thing, property right or release the donee from property obligations. Please note that such an agreement cannot contain any property obligation or counter-representation of the donee, otherwise it will be void.
Important
If the value of the gift transferred to the legal entity. person exceeds 3 thousand rubles, the agreement must be drawn up in writing . Violation of this rule entails the nullity of the concluded transaction (clause 2 of Article 574 of the Civil Code).
Note that the requirement for any agreement concluded by a legal entity to be in writing. person, contained in paragraph 1 of Art. 161 Civil Code.
In addition to the form, the contract must meet the requirements for content. So, according to Art. 432 of the Civil Code, the contract must contain a condition on the subject . According to paragraph 2 of Art. 572 of the Civil Code, a gift agreement that does not indicate a specific gift is void. Thus, the deed of gift describes in detail all the significant characteristics of the gift, distinguishing it from among similar items.
In addition to the subject matter, the procedure for its transfer to the recipient citizen must be specified in the contract. In particular, the conditions of transfer, the method and timing of delivery, additional documents to be drawn up, procedures to be carried out, third parties involved, etc. must be determined.
If the gift being transferred has shortcomings that may cause any harm to the recipient, then a representative of the donor’s organization is obliged to inform him about them (Article 580 of the Civil Code). In addition, it is advisable to also reflect these shortcomings in the contract.
Since making a donation is not only a transaction, but also a financial transaction that requires accounting, then in addition to the gift agreement, the legal entity needs to prepare other documents. In particular, the donation is also formalized by an order from the head of the organization and a statement of issuance of the gift, which serves as a deed of transfer.
Please note that on behalf of the organization, a gift transaction is always concluded by its authorized representative, who acts under a power of attorney issued by the head of the organization. According to paragraph 5 of Art. 576 of the Civil Code, such a power of attorney must necessarily contain an indication of the donee and the subject of the donation .
Sample contract
Let's start with where the preparation of each donation procedure begins - with the donation itself. This is a document that reflects the procedure itself, legally records it and serves so that the recipient can pay the tax and register the gift in his name.
The content of the contract largely depends on what exactly is being given, so for example we will take the donation of a car by an organization to an individual. In this case, the gift agreement will have the following form:
- Heading . Contains the name of the gift agreement, number and city in which it was drawn up;
- Description of the contract . Reflects its essence, and also briefly describes its sides;
- Agreement . This paragraph describes in more detail what exactly will be carried out with the help of this document, namely the absolutely free transfer of a car from the donor - an organization to the recipient - an individual;
Read about registering a car donation agreement here.
- Description of the parties . This paragraph describes in detail the data of the recipient and the donor. An individual must indicate his full name, place of registration, and passport details. A legal entity must indicate its details: TIN, OGRN, KPP, etc.;
- Information about the transferred property . Since our example involves a car, the data from the title is recorded, as well as the price of the vehicle;
- Rights and obligations of the parties . This paragraph specifies the requirements that each party is obliged to fulfill, as well as the conditions on which they can count;
Read how to inherit a car here.
- Controversial points . This paragraph prescribes the settlement of complex issues during the transfer of property, methods for resolving difficult issues, the actions of the parties in case of force majeure, as well as the conditions for canceling the gift agreement;
- Special conditions . Here you can write down anything you want, provided that the additional clauses do not contradict the law or the principles of donation;
- Final provisions . This paragraph describes the final stages of the transaction. Since we have a car involved in the donation, this part will specify the conditions for its transfer and re-registration;
- Final point . Contains a repetition of the details of each party and signature.
At this point, the gift agreement between an individual and a legal entity is considered completed. Separately, we note that only an authorized person can sign the agreement on the basis of an order or other similar document. Most often, this authorized person is the general director, head of the branch or chief accountant of the branch.
Donation of a car by a legal entity to an individual
The procedure for donating a car by a legal entity in favor of a citizen is not much different from a standard deed of gift, however, it still has characteristic features. So, for a number of reasons (participation of a legal entity, the cost of the gift, the need to register it), such an agreement is subject to mandatory written execution . In addition to the contract itself, other documents confirming the expenses of the legal entity must be drawn up.
Additionally
After receiving a car as a gift, the individual. a person will need to register him/her with the traffic police. The procedure for such registration is provided for by Order of the Ministry of Internal Affairs of the Russian Federation No. 1001 dated November 24, 2008.
When donating in favor of individuals. persons, it should be remembered that paragraphs 2 and 3 of Art. 575 of the Civil Code, the legislator determined the list of persons in whose favor donations are prohibited . Thus, this list includes employees of educational, medical and social institutions, as well as state and municipal employees.
According to Art. 432 of the Civil Code, the only essential condition for a gift is the condition about the object (gift). In view of this, the deed of gift must contain a detailed description of the car - its make, model, type, color and body number, engine number, as well as other individual characteristics. Ignoring this rule does not allow the deal to be considered concluded.
Let us note that if a citizen receives a car as a gift, he will have an obligation to pay 13% personal income tax on the market value of the donated property, which must be indicated in the document. The objectivity of the indicated cost must be confirmed by documents or by conducting an expert assessment.
For your information
In addition, the contract must determine one of the methods of transferring the gift. According to Art. 574 of the Civil Code, transfer of a car is possible by handing it over, symbolic transfer (handing over the keys) or transfer of title documents for the car.
When concluding a legal and physical persons promising to donate a car and the subsequent reorganization of the donor enterprise before its fulfillment, in accordance with Art. 581 of the Civil Code, the obligation to execute the transaction passes to the legal successors. At the same time, in the event of the death of the donee, the right to receive the gift does not pass to the heirs.
Example
A representative of AKB LLC approached the notary Prokhorova with a request to certify the deed of gift for a Toyota car made by AKB in favor of the bailiff Rozanov. In a private conversation with a representative of the organization, the notary learned that the beneficiary's bailiff was processing a case against AKB, about collecting multimillion-dollar debts from the latter. In addition, the representative explained that handing over a car is a sign of gratitude and cannot be considered a bribe. However, the notary had a different opinion on this matter. She refused to certify this agreement, citing the fact that it was contrary to the law.
In particular, this agreement violated paragraph 3 of Art. 575 of the Civil Code, which prohibits donations in favor of civil servants related to their professional activities. Since the bailiff was a civil servant, and the donation of the car was directly related to his activities, the notary’s refusal was completely legal.
Registration of the agreement
Let's move on to the next stage, namely the registration of the agreement. Since the donor is a legal entity, it will also be interested in this operation no less than the recipient himself. This is due to the fact that the company must have documentary evidence that the property was transferred and the recipient took ownership.
The registration process differs depending on what was donated. If the gift was some kind of inexpensive item, then there is no need to contact government services - it will be enough to draw up a corresponding act. But if this property requires documents to be owned, then it is impossible to do without contacting government agencies.
Since in our case the car is being donated, the representative of the organization and the recipient will have to contact the traffic police, each provide their documents, a donation agreement, pay a fee and sign applications. After this, new papers are issued, in which the donee will be the owner of the car.
Expert opinion
Soloviev Viktor Yurievich
Lawyer with 7 years of experience. Specializes in criminal law. Legal expert.
Donation of funds by a legal entity to an individual
It is generally accepted that money is the most common gift item. Their free transfer from the organization to individuals. to a person, is carried out under a written gift agreement (Article 161 of the Civil Code). Please note that failure to comply with the written form may result in the transaction being declared invalid.
Additionally
As you know, a gratuitous transfer is recognized by tax law as a sale, and therefore the donor has to charge VAT. However, this rule applies only to goods - donating money allows you to avoid the obligation to charge the specified tax.
When drawing up a contract for donating money, the parties must take into account the condition on the subject (Article 432 of the Civil Code). To account for it, the document must indicate the amount transferred to the individual , as well as the currency in which the gift is made.
When concluding a contract of promise of gift, the donee has the right to refuse to receive funds as a gift. Such a refusal, according to Art. 573 of the Civil Code, subject to writing. If the donor suffers losses associated with such refusal, the donee is obliged to compensate them.
If legal If a person transfers funds related to his business activities free of charge in the last 6 months before declaring bankruptcy, then such donation may be canceled . To do this, it is enough for the creditor to submit a corresponding demand to the court (clause 3 of Article 578 of the Civil Code).
When drawing up such a deed of gift, one should take into account the legislative prohibitions established by Art. 575 Civil Code. Thus, it is prohibited to give money to workers in the social, educational and medical spheres, municipal and government employees - such a gift will be considered corruption.
The legislator does not limit the parties to the maximum allowable amount of gifts to individuals. face of funds. In addition, the agreement cannot provide for the intended purpose of the donated funds. If the need to determine the intended purpose still exists, it is more advisable to conclude a donation agreement (Article 582 of the Civil Code).
Donation of household appliances in 2021 from the point of view of Russian legislation
One of the most common items that act as an object of gift, without a doubt, is various household appliances, which are used by 99% of Russians to facilitate and automate their daily lives:
- vacuum cleaners;
- electric kettles;
- TVs;
- juicers;
- washing machines;
- microwave ovens, etc.
At the same time, according to the legislation in force in the Russian Federation, household appliances are included in the category of movable property, and therefore the process of conducting a donation transaction is usually carried out according to the classical scheme. However, despite the simplicity of drafting and execution, the deed of gift must comply with all the rules and regulations established by the legislator, because any ignoring or violation of them leads to the nullity of the entire transaction.
Taxes on gifts from a legal entity to an individual
As you know, when making a donation from an organization in favor of citizens, the obligation to pay taxes arises on both parties to the donation. Thus, since the donation of property is recognized as its sale (Article 146 of the Tax Code), the first place where the value of the property donated to a citizen is subject to accounting is the value added tax (VAT). An exception to this rule is the case of donations of money - they are not recognized as goods, and therefore their sale is impossible. Please note that organizations using the simplified tax system are not VAT taxpayers (Article 346.11 of the Tax Code).
Attention
The cost of property transferred free of charge and the expenses incurred by the organization to transfer it to the donee are not taken into account when calculating corporate income tax (clause 16 of Article 270 of the Tax Code).
Interestingly, when using the simplified tax system, donation expenses are also not taken into account when calculating the amount of income received.
As for the recipient individual, when receiving a gift from an organization, the tax obligation to pay personal income tax arises only if the total value of gifts received from the specified organization during the year exceeds 4 thousand rubles (clause 28 of Art. 217 NK). In this case, income tax is subject to calculation not from the entire value of gifts, but only from the part exceeding 4 thousand rubles.
The tax rate levied on the donee is 13% of the market value of the property (Article 40 of the Tax Code). The objectivity of the tax base must be confirmed by documents or through an expert assessment.
Note that if the organization is a tax agent of the donee individual. person (for example, when donating to an employee), then, according to Art. 226 of the Tax Code, it is the donor who will be obliged to withhold the amount of tax from the donee’s funds. If the donation occurs in cash, then such deduction is made even before the transfer of funds to the donee, if in kind - from the next payments after the donation.
Agreement between legal entities
From the point of view of the law, donation between legal entities is not always legal, and for such a gift there are a number of restrictions that must be taken into account in order for the transaction to be recognized as liquid:
- Gifts between legal entities whose value exceeds 5 minimum wages are prohibited;
- If the recipient legal entity has undergone a reorganization procedure, then the rights to the gift to the new organization are not transferred, except in cases where such situations are provided for in the gift agreement;
- If the subject of the agreement is the right to claim debt or credit obligations, then the creditor is obliged to notify the debtor of such circumstances and the fact that the right of claim is now transferred to another legal entity;
- When transferring debt obligations under a gift agreement, taking into account current legislation, such transactions are often declared invalid due to the bankruptcy of the debtor;
It is worth noting that the transfer of property between legal entities is possible in a larger amount; in cases where the donor and the donee are in a founder-subsidiary relationship, respectively, then it is possible to formalize the gift as a donation, clearly indicating in the gift agreement the clear framework for the use of the property.
Transfer process
Let us briefly describe the entire procedure. A donation from a legal entity to an individual takes place as follows:
- A gift agreement (deed of gift) is drawn up, which will contain all the data about the procedure and property;
- On the basis of a gift agreement, the transfer of property to an individual occurs;
- If necessary, the agreement is registered, the recipient is given documents to own the gift;
- The donor pays tax on the donated property.
This list in itself is no different from the usual donation procedure, but if the donor is a legal entity, then significant differences will appear in various aspects. And the first of them are noticeable already in the gift agreement.
- preliminary gift agreement
- Notary: gift deed
- Do I need to have a gift deed certified by a notary?
- MFC gift deed: how to formalize, necessary documents in 2021
- Is it possible for a relative to challenge a donation agreement for an apartment?
- Is it possible to cancel a gift agreement: under what conditions and how can it be cancelled?
- Can heirs challenge a gift agreement after the death of the donor?
Subject of the agreement
As part of a gift agreement between individuals and legal entities, as well as between organizations, the following can be transferred:
- Property rights and things most often appear as the subject of donation;
- Credit and debt obligations to the donor, a third party. Here, only a legal entity can act as a donee, and notification of the creditor and confirmation of its financial status is a mandatory aspect of the transaction;
- The donor may, within the framework of the agreement, release the donee from the debt obligations that he has to the donor;
- As part of the agreement, the donor can assume the debt obligations of the donee to the creditor, but only with the consent of the creditor.
As you can see, a gift agreement is the most convenient way of interaction between individuals and legal entities in cases where property or obligations are transferred free of charge.
When do you need to put a deed of gift in writing?
Depending on the time of implementation of the transaction, gift agreements are divided into real and consensual.
Real contracts can be concluded orally, but they are subject to a condition - the conclusion of the contract must occur simultaneously with the transfer of property. A typical example is giving a gift at a birthday party after a toast.
As for real estate donation agreements, such documents are not subject to state registration if they were concluded after March 1, 2013. However, the direct transfer of ownership to another person must be recorded in Rosreestr.
Without this procedure, the recipient will not be considered the owner of the apartment, land or share in them. Also, when donating a car, you need to register the transfer of ownership with the traffic police.
Arbitrage practice
There is little practice in challenging donations made subject to a prohibition. People and organizations try to avoid litigation and take into account the provisions of Art. 575 of the Civil Code of the Russian Federation.
However, there are examples of decisions on claims to invalidate a DD when the plaintiffs’ demands are satisfied:
- Decision No. 2-298/2019 2-298/2019~M-171/2019 M-171/2019 dated June 25, 2021 in case No. 2-298/2019;
- Decision No. 2-273/2019 2-273/2019~M-232/2019 M-232/2019 dated May 8, 2019 in case No. 2-273/2019;
- Decision No. 2-273/2019 2-273/2019~M-232/2019 M-232/2019 dated May 8, 2019 in case No. 2-273/2019.
Sample contract
- Heading . Contains the name of the gift agreement, number and city in which it was drawn up;
- Description of the contract . Reflects its essence, and also briefly describes its sides;
- Agreement . This paragraph describes in more detail what exactly will be carried out with the help of this document, namely the absolutely free transfer of a car from the donor - an organization to the recipient - an individual;
- Description of the parties . This paragraph describes in detail the data of the recipient and the donor. An individual must indicate his full name, place of registration, and passport details. A legal entity must indicate its details: TIN, OGRN, KPP, etc.;
- Information about the transferred property . Since our example involves a car, the data from the title is recorded, as well as the price of the vehicle;
- Rights and obligations of the parties . This paragraph specifies the requirements that each party is obliged to fulfill, as well as the conditions on which they can count;
- Controversial points . This paragraph prescribes the settlement of complex issues during the transfer of property, methods for resolving difficult issues, the actions of the parties in case of force majeure, as well as the conditions for canceling the gift agreement;
- Special conditions . Here you can write down anything you want, provided that the additional clauses do not contradict the law or the principles of donation;
- Final provisions . This paragraph describes the final stages of the transaction. Since we have a car involved in the donation, this part will specify the conditions for its transfer and re-registration;
- Final point . Contains a repetition of the details of each party and signature.
When can you challenge or cancel a transaction?
The donor has the right to cancel the transaction or refuse his obligation in the following cases:
- if the marital status or health status has changed radically, as a result of which the donation will lead to a decrease in his standard of living;
- if the recipient made an attempt on his life (as well as the life of his loved ones) or intentionally caused bodily harm;
- if the recipient improperly handles the received property or its irretrievable loss is possible;
- if the donor survives the recipient.
The listed conditions do not apply to ordinary gifts of small value (up to 3,000 rubles).
