Table of contents
- Part 1 of Article 50 of the Civil Code of the Russian Federation
- Part 2 of Article 50 of the Civil Code of the Russian Federation
- Part 3 of Article 50 of the Civil Code of the Russian Federation
- paragraph 1
- point 2
- clause 2.1
- point 3
- point 4
- point 5
- paragraph 6
- paragraph 7
- paragraph 8
- paragraph 9
- paragraph 10
- paragraph 11
- paragraph 12
- paragraph 13
- paragraph 14
- paragraph 15
Special rules for levying income tax
As noted above, not all profits of NPOs are eligible to be taxed. A legal reduction in the income tax base can only be applied if a number of conditions are met:
- Accounting for targeted and non-targeted income in NPOs should be kept separately; only then can targeted income be excluded from taxation on the basis of benefits for non-profit organizations. Naturally, these funds must be used exclusively for their intended purpose, which must be confirmed by a report.
- Non-targeted income must be taken into account among “other”; these are two types of income:
- sales - income from performing work, providing services (for example, selling company brochures, selling educational literature, organizing seminars, trainings, etc.);
- non-operating - those whose source does not have a direct connection with the activities of the NPO, for example, fines for non-payment of the membership fee, late fees, interest from a bank account, money for rented real estate - the property of an NPO member, etc.
Non-targeted revenues of NPOs (both groups of income), according to the Tax Code of the Russian Federation, constitute the income tax base.
REFERENCE! The income tax rate for NPOs is the same as for commercial structures: 24%, of which 6.5% will go to the federal budget, and 17.5% to the budget of the constituent entity of the Russian Federation to which the non-profit organization belongs. The last part can be reduced at the initiative of local authorities, into whose budget it is intended.
Is it possible to transform a budgetary institution into a closed joint-stock company?
Institutions by type of ownership are divided into private, state and municipal. State and municipal institutions can be financed from the budget or autonomously. Therefore, if we are talking about a budgetary institution, we mean that it is a state or municipal non-profit organization. According to civil law, a budgetary institution is created not to make a profit, but to carry out non-profit socio-cultural, managerial or other functions. Closed joint stock company, in accordance with Art. 50 of the Civil Code of the Russian Federation, refers to business companies, which are commercial organizations that derive profit from their activities. The activities of budgetary institutions and business entities differ in nature. The law allows the transformation of a state or municipal institution only into another form of non-profit organization, and does not contain rules that open up the possibility of transforming it into a business company.
Article 50 of the Civil Code of the Russian Federation. Commercial and non-profit organizations (current edition)
1. In the commented article, the legislator retained the previously known division of legal entities into commercial and non-commercial. This division is based on the purpose of activity of a particular legal entity. For commercial legal entities, this goal is to make a profit, while non-profit organizations do not have profit as such a goal and do not distribute the profits among participants.
Since public activities can be carried out by entities that do not have the status of a legal entity, it should be noted that the concept of “non-profit organization” can be used in two meanings - broad and narrow.
In a broad sense, non-profit organizations include all organizations, including collective entities that are not legal entities, created for socially beneficial purposes and performing socio-economic functions, and therefore, although endowed with certain rights and responsibilities, cannot act in civil circulation . In a narrow, civil law sense, non-profit organizations should be understood only as those of these organizations that have acquired the status of a legal entity.
Another feature that distinguishes non-profit organizations from commercial ones is the special (target) legal capacity that the legislator established for the former.
They are usually created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, satisfy the spiritual and other non-material needs of citizens, protect the rights, legitimate interests of citizens and organizations, resolve disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits.
For both commercial and non-commercial legal entities, an exhaustive list of organizational and legal forms is established, provided for in the Civil Code of the Russian Federation.
2. Clause 2 of the commented article lists the permissible organizational and legal forms of legal entities that are commercial organizations. Paragraph 2 of this article, in comparison with the previously effective legislation, has been supplemented with a new organizational and legal form of commercial organizations - peasant (farm) enterprises
3. Unlike previously existing legislation, the list of non-profit legal entities specified in paragraph 3 of the commented article is exhaustive. This means that only organizations directly provided for by the Civil Code can be created.
4. According to paragraph 4 of the commented article, non-profit organizations have the right to engage in income-generating activities if this is provided for by their charters. However, this is possible only insofar as it serves the purposes for which they were created, and if it is consistent with such purposes.
In paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” it was noted that in accordance with paragraph 4 of Article 50 of the Civil Code of the Russian Federation, non-profit organizations can carry out income-generating activities , if provided for in their statutes, only in so far as it serves the purposes for which they were created, and if it is consistent with such purposes. In this case, the non-profit organization, in terms of carrying out income-generating activities, is subject to the provisions of the legislation applicable to persons engaged in business activities (clause 1 of Article 2, clause 1 of Article 6 of the Civil Code of the Russian Federation).”
However, it is necessary to distinguish between the concept of entrepreneurial activity and income-generating activity. Entrepreneurial activity involves the systematic extraction of profit, which is understood as income received, reduced by the amount of expenses incurred. Non-profit organizations cannot make a profit, but only receive income.
For example, the main types of income-generating, but not entrepreneurial activities in the field of education are: provision of paid educational services, leasing of excess or unused educational space, etc.
5. In accordance with paragraph 5 of Art. 50 of the Civil Code of the Russian Federation establishes that a non-profit organization can carry out income-generating activities if this is provided for by its charter, and it has sufficient property to carry out these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies. The exception is government and private institutions. In accordance with Art. 14 of the Federal Law of February 8, 1998 N 14-FZ “On Limited Liability Companies”, the size of the authorized capital of the company must be at least 10 thousand rubles.
According to Art. 8 of the Federal Law of September 26, 1997 N 125-FZ “On Freedom of Conscience and Religious Associations”, the provisions of paragraph 5 of Article 50 of the Civil Code of the Russian Federation do not apply to religious organizations.
6. Federal Law No. 99-FZ of May 5, 2014 introduced clause 6 into the commented article, which established that relations involving non-profit organizations in carrying out their main activities, as well as other relations with their participation that are not related to the subject of civil legislation (Article 2), the rules of this Code do not apply unless otherwise provided by law or the charter of a non-profit organization. Thus, income-generating activities such as selling goods, performing work, and providing services, which are the subject of civil law regulation, are not the main ones for non-profit organizations, but serve as a source of strengthening their material base.
In paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” the following is noted.
“According to paragraph 6 of Article 50 of the Civil Code of the Russian Federation, the rules of this Code do not apply to relations in which non-profit organizations carry out their main activities, as well as to other relations with their participation that are not related to the subject of civil legislation, unless otherwise provided by law or the charter of a non-profit organization.”
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Foundation creation
After reading all the introductory information, you have decided to register the fund. Based on their prescribed structure of governing bodies, you probably already guessed that one person will not be enough to create a fund.
When forming a fund, the founder or founders provide for the future strategy of the fund, its goals, types of activities, form a team and distribute it among the management bodies of the fund.
Based on the decisions made, the fund’s charter is developed and approved, providing for important features that will facilitate the implementation of future fund programs. Distribute the responsibilities of each body and determine the duration of their work.
If there are several founders of the fund, they also determine the procedure for joint activities, form future property for the activities of their fund and set a date for payment of certain property.
It is important to sign all decisions made and send them for state registration to the authorized body of the Ministry of Justice.
You can submit documents to the authorized body of the Ministry of Justice in one of the following ways:
- independently, without notarization of documents
- by notarized power of attorney, having previously certified application P11001 by a notary
- using an electronic digital signature
The fund registration period is 22 working days, which is approximately a little more than a month.
In the authorized body of the Ministry of Justice, documents undergo legal examination at several conditional levels:
- authorized body of the Ministry of Justice - 14 (Fourteen) working days (three weeks) period for reviewing documents. Result - a decision on state registration or a decision to refuse state registration of the fund
- Federal Tax Service 5 (Five) working days - state registration - entering information about the fund into the Unified State Register of Legal Entities
- authorized body of the Ministry of Justice 3 (Three) working days - issuance of documents to the applicant.
As a result of public service from the authorized body of the Ministry of Justice, you will receive:
- charter of the fund with the mark of the tax authority and the authorized body of the Ministry of Justice
- TIN certificate
- certificate of the authorized body of the Ministry of Justice
- record sheet on the creation of the fund
Common features
- Both of them can play the roles of sellers, buyers, suppliers or consumers in the market. That is, both of them can operate in market niches.
- Both options are suitable for making a profit, investing, and managing your own financial resources.
- In both cases, companies must receive more money than they spend to stay afloat.
- Accounting is a mandatory activity for both commercial and non-profit firms.
- After listing the common features, I would like to ask, what exactly is the difference, since everything is so the same. However, there are significant differences that need to be understood.
