Is giving by proxy possible and what are the risks for the donor? Deal Features

When might a power of attorney for donation be needed?

A power of attorney is a document according to which one citizen (principal) authorizes a second citizen (attorney) to represent interests before a third party.

It may also be needed when donating in several situations:

• The donor cannot be present at the transaction in person: he is sick, is abroad, etc.;
• The donor is a legal entity, and the founder or director cannot formalize the deed of gift personally. The document appoints a legal representative.

The form of the power of attorney depends on the type of transaction. According to Art. 574 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is drawn up in writing if real estate is being donated, the donor is an organization and the value of the gift exceeds 3,000 rubles, or the citizen promises to give a gift in the future. In other cases, an oral transfer of the gift is sufficient.

Important! If the DD requires notarization, then the power of attorney must also be certified by a notary. A power of attorney agreement without a certificate is signed only in a notary office.

Legal Advice: Even if the law does not require a notarial form, it is better to contact a notary. The presence of his signature will significantly reduce the likelihood of challenging the transaction and protect the interests of both parties - the donor and the donee.

What does the notary fee consist of?

When making a transaction of donating land, the cost of the deed of gift for the land plot from the notary is formed according to the following principle :

1. Firstly, it will take into account who will be the drafter of the gift agreement itself. If the land donation agreement is drawn up directly by you, then you do not need to pay a notary for it.
2. Secondly, you should remember the presence of shares, if any. And of course, the assessment of the property itself and the submission of documents to the registration chamber.

If the notary only certifies your gift agreement, then the cost of his services will consist only of standard tariffs for technical and legal work.

The tariffs themselves are usually the same for all notaries in a particular region; you can see them on the official websites of regional notary associations.

If a notary provides additional services, then an additional fee is charged for them and is set separately by each notary. Accordingly, before registering a transaction with a notary, it is necessary to clarify this information.

What can you give by proxy?

Citizens and legal entities can draw up deeds of gift for different types of gifts that belong to them as property:

Features of donating movable property

Is a gift agreement valid after the death of the donor?

How can you save money?

So far, changes in legislation have affected only shared property specifically, which require mandatory certification of the agreement by a notary. Therefore, the population has the opportunity to carry out the entire donation transaction independently .

That is, you yourself take a standard gift agreement and the entire package of necessary documents, pay the state fee and submit the entire package of documents to the registration chamber.

It is worth remembering that in this case there may be risks to the quality of the entire procedure.

Our experts have prepared a special article for you, which discusses in detail all the nuances of drawing up a standard land donation agreement. You will learn how to avoid the most common mistakes when filling out a contract yourself without a notary and will be able to:

• study the step-by-step instructions for concluding a contract;
• familiarize yourself with a sample of a completed land donation agreement.

Features of donation by power of attorney

The main rule regarding the power of attorney is established in paragraph 5 of Art. 576 of the Civil Code of the Russian Federation. According to it, the document must contain information about the donee and the subject of the donation (gift). Without such information, the power of attorney is void, and it is impossible to draw up a DD using it. For example, it will not be accepted when registering a transfer of ownership in Rosreestr, and in general the transaction will be easier to challenge.

There are other rules:

• The donor's representative does not have the right to make transactions in relation to himself and act as the donee (clause 3 of Article 182 of the Civil Code of the Russian Federation);
• Powers of attorney on behalf of citizens in prison, in military service, in stationary social organizations, with the signature of an authorized leader, are equivalent to notarial ones. He certifies the document, because a person does not have the opportunity to come to a notary’s office;
• To transfer a gift from a legal entity, a power of attorney is issued by the head or other authorized citizen in accordance with the constituent documents and legislation (Article 185.1 of the Civil Code of the Russian Federation).

Note! If an attorney acts on behalf of the company when donating by proxy, you will need not only the signature of the manager, but also a seal.

Taxes

When receiving a plot of land as a gift, the recipient increases his income by the full value of this plot. In accordance with the Tax Code, the recipient of the gift must pay income tax (NDFL) on this amount. The rates of this tax are (Article 224 of the Tax Code):

• 13% - for residents of the Russian Federation;
• 30% - for non-residents of the Russian Federation.

But if the gift is made by close relatives, then such a transaction is exempt from personal income tax. Close relatives are listed in Article 207 of the Tax Code.

Such relatives include:

• spouses who are in a registered marriage;
• children, parents;
• brothers and sisters.

At the same time, such categories of citizens as low-income people, people with disabilities

opportunities or pensioners do not have any privileges when paying personal income tax.

When property is transferred as a result of a gift, the new owner of the property is obliged to bear the burden of maintaining the property. At the same time, he is required to pay various taxes.

For example, land tax. This tax is set by local authorities. The cadastral value of the site is usually taken as the basis . For plots of various purposes in NG, acceptable tax rates are given. So for areas used for gardening, the rate should be no more than 0.3%.

Detailed instructions on how to rent land in our material! Who is given a vacated room in a communal apartment first? Find out about it here.

Are you looking for a sample apartment exchange agreement? It can be downloaded from this link.

Types of powers of attorney and their differences

The Civil Code of the Russian Federation provides for several types of powers of attorney: one-time, special, general.
According to their form, they are divided into two subtypes: simple written and notarial. There are also distinctions based on the validity period: urgent, issued for a specific period, and unlimited - drawn up for an indefinite period of time: it is canceled strictly in certain cases. Powers of attorney are also divided according to the number of parties to the transaction: unilateral, where the interests of one donor are represented by one attorney, and multilateral, involving several principals and attorneys.

For donations, powers of attorney are of greatest importance in terms of the scope of powers. Let's look at them in detail.

One-time power of attorney

A one-time ticket is issued for a representative to perform one specific action. When donating, you can indicate that the citizen is only authorized to sign the DD or submit documents for registration.

Legal advice: a one-time power of attorney is the best option for giving. It strictly limits the rights and capabilities of the representative, thereby reducing the risks of the principal.

Special power of attorney

A special one is issued for performing similar actions during a certain period. According to it, the representative has the right to sign the DD or submit documents for registration several times. This option is not very suitable for donation if you need to issue only one deed of gift.

General power of attorney

The most dangerous option for the donor is a general power of attorney. It does not limit the attorney’s powers, and he will be able to use it to perform any actions with property: donate, exchange, sell.

Legal advice: even if you completely trust a person, it is recommended not to issue a general power of attorney for him. It is better to limit yourself to a one-time or special one in order to preserve relationships and property.

Free loan agreement

Gratuitousness in terms of credit legal relations between legal entities can be understood as:

1. Provision by one legal entity to another of a loan without interest (or subject to subsequent forgiveness of interest).

2. Providing a loan by one legal entity to another with its subsequent complete write-off.

It is important that both types of legal relations do not include agreements that can be qualified as gift agreements during a tax audit. In this sense, the Federal Tax Service will have the least number of questions regarding the loan agreement, which was initially concluded without interest.

But there will be noticeably more questions if the interest or the debt as a whole is forgiven by the lender (through the conclusion of a separate agreement). If the parties cannot prove that the donation did not take place, then such an agreement may be declared invalid (clause 3 of information letter No. 104).

You can argue for the lack of intention to reward the counterparty when writing off a debt by reflecting in the loan (interest) forgiveness agreement the desire to forgive the debt based on considerations of benefit. It may consist in maintaining a trusting relationship with the counterparty and the opportunity to continue cooperation with him subsequently.

These are the main types of gratuitous agreements between legal entities. Despite their differences, it would be legitimate to identify a number of generalized features that characterize all the types of agreements considered.

How to donate real estate by power of attorney: step-by-step instructions

The procedure is similar to an independent donation by the parties, but there is one step in it - the execution of a power of attorney for the representative. Both the donor and the donee have the right to do this if they cannot be present at the transaction in person.

Important! The agreement can be signed in person, and a power of attorney can be issued to an attorney to register the transfer of ownership, because the presence of all participants in the transaction is required. If it is not possible to sign the DD, a representative has the right to do so.

Step 1: agreement with the donee

First, you need to agree on the deal with the recipient of the gift: tell him what property is being transferred to him, when and where to sign the deed of gift. This step is important because... he can refuse the deal (Article 573 of the Civil Code of the Russian Federation).

Step 2: execution of a power of attorney

It is necessary to find a person to represent your interests. It can be a relative, acquaintance, friend - the choice is left to the principal. If the attorney agrees, you need to issue a power of attorney with a notary.

Contents of the power of attorney

The power of attorney is drawn up in writing and must contain the following information:

• The nature, range and scope of powers of the attorney;
• Full name, passport details of the principal and representative;
• Duration of powers;
• Description of the subject of the transaction: address of the property, area, number of floors, number of rooms, etc.;
• Information about the donee;
• Possibility or impossibility of transfer of trust;
• Details of title documents for real estate;
• Signature of the principal;
• Signature and seal of a notary.

If the principal is a legal entity, the organization's seal will be required.

Sample of a one-time power of attorney for donating a share in an apartment: alt:

Validity

According to Art. 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate its validity period remains valid for 12 months from the date of signing. If the date is not specified, the document is considered void. The maximum period is 3 years.

If a notarized power of attorney is intended for transactions abroad and does not contain information about the validity period, it is valid until canceled by the principal.

Documentation

To issue a power of attorney you will need:

• Passports of the principal and attorney;
• Certificate of ownership or extract from the Unified State Register for housing;
• The principal's title documents for real estate: purchase and sale agreement, exchange, etc.

State duty

According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 200 rubles. If a notary's assistance is required in preparing a document, this is paid separately. On average, prices for additional services start from 2,000 rubles. and depend on the region.

Step 3: registration of deed of gift

When the power of attorney is issued, you need to sign the DD. An attorney does this on behalf of the principal (donor), and the donee signs independently.

Important! If the DD requires certification, it must be signed directly by a notary.

Documentation

The list of documents is almost the same as when drawing up a power of attorney:

• Passports of the parties;
• Power of attorney;
• Deed of gift (if drawn up independently and not from a notary);
• Real estate documents.

Step 4: registration of the transaction in Rosreestr

After signing the DD, the representative and the donee need to come to the MFC or Rosreestr to submit documents for re-registration of ownership. If a contract of promise of gift has been drawn up, the application is submitted only from the moment its execution begins - the date is indicated in the document.

For registration, the list presented above is provided, but in addition to it you will need a deed of gift.

Note! If the gift is not real estate, but, for example, a car, registration is not required. All you need to do is make changes to the title and register the vehicle with the new owner.

State duty

Individuals pay 2,000 rubles for re-registration of real estate, organizations – 22,000 rubles.

Legal entity: concept, features

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.

Termination of power of attorney

According to Art. 188 of the Civil Code of the Russian Federation, a power of attorney is revoked for one of several reasons:

• The expiration date specified in the document occurs;
• Cancellation of a power of attorney by the principal;
• Refusal of the attorney's authority;
• Death of the principal or representative;
• Bankruptcy of an attorney or representative in an arbitration court if he loses the right to issue powers of attorney.

To terminate powers, a consent to refuse is drawn up. The parties have the right to draw it up at any time and contact a notary.

Is a gratuitous contract possible outside the jurisdiction of the Civil Code of the Russian Federation?

Indeed, a gratuitous (as well as paid) agreement between legal entities may be concluded in a form not provided for by the Civil Code of the Russian Federation or other laws (clause 2 of Article 421 of the Civil Code of the Russian Federation). At the same time, the norms of the Civil Code of the Russian Federation and other laws can be applied to individual events within the framework of the legal relations of the parties on the principle of analogy of law.

In addition, a legal entity has the right to enter into gratuitous legal relations not only under an agreement (as a bilateral transaction), but also on other grounds, perhaps not provided for by law, but provided that they do not contradict it (subparagraph 1, paragraph 1, article 8 Civil Code of the Russian Federation).

Examples of gratuitous contracts, the drafting of which is not regulated by the Civil Code of the Russian Federation (but may be regulated by its provisions based on the principle of analogy of law):

• about sponsorship;
• voluntary compensation for damage;
• partnership;
• protection of confidential data;
• lending using bills of exchange.

Of course, it is possible to conclude various gratuitous agreements between Russian and foreign companies. Moreover, if such agreements are concluded in the jurisdiction of international agreements signed by Russia, then when considering the legal consequences of these agreements, first of all, international norms are applied (Clause 2 of Article 7 of the Civil Code of the Russian Federation).

Risks of giving by proxy

There are several risk factors when making a gift by proxy. If a general agreement is drawn up, the attorney will be able to dispose of the principal’s property at his own discretion: not give it to the donee, but transfer everything to himself or sell it to other people. It’s better to make a one-time deal, for a specific transaction.

There is another point: if another person wants to challenge the DD, in court he can refer to the fact that the principal did not understand the consequences when drawing up the power of attorney. That is why it is recommended to have the document certified by a notary: this way the chances of the transaction being canceled will be reduced. Notaries always explain the rights, obligations and consequences for the parties. If it is determined that the owner is in poor condition and does not understand the consequences of the gift, the certification will be refused.

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.”

Arbitrage practice

Often, interested parties turn to the courts to invalidate DDs and powers of attorney, justifying this with the above reasons or a violation of their interests.

Here are some examples of decisions where claims were satisfied:

• Decision No. 2-3/2019 2-3/2019(2-517/2018;)~M-466/2018 2-517/2018 M-466/2018 dated January 22, 2021 in case No. 2-3/2019 ;
• Decision No. 2-17/2019 2-17/2019(2-2093/2018;)~M-1268/2018 2-2093/2018 M-1268/2018 dated January 15, 2021 in case No. 2-17/2019 ;
• Decision No. 2-335/2018 2-335/2018(2-5440/2017;)~M-3301/2017 2-5440/2017 M-3301/2017 dated September 28, 2021 in case No. 2-335/2018 .

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.

Lawyer's answers to frequently asked questions

Is it possible to transfer a power of attorney for donation?

Yes, if this is provided for in the initial power of attorney from the donor or donee.

Is the presence of the donee required when drawing up a power of attorney?

No, his data is enough.

What is the validity period of a power of attorney?

The validity period cannot exceed the period specified in the first power of attorney.

A general power of attorney has been issued for the son to dispose of property. Can he use it to draw up a deed of gift for the apartment and give it to himself?

No you can not. The same person does not have the right to represent the interests of both parties.

Is it possible to call a notary to your home if a person is paralyzed?

It is possible, but transportation costs and services are paid separately from the state duty. The cost is set by regional notary chambers.

What is the price of the deed of donation?

Since the procedure for donating a land plot itself is gratuitous , it entails a number of nuances, which are primarily regulated by the following legislative acts:

1. Federal Law “On State Registration of Real Estate” dated July 13, 2015 N218-FZ.
2. “Land Code of the Russian Federation” dated October 25, 2001 N 136-FZ.
3. “Fundamentals of the legislation of the Russian Federation on notaries” (approved by the Supreme Court of the Russian Federation on February 11, 1993 N 4462-1).

Given the latest changes in legislation, unfortunately, it will not be possible to formalize this transaction without the help of a notary.

In the table below you can see the average optimal price by region for notary services when registering deeds of land.

As can be seen from the table, the average cost of providing services for registering a deed of gift for a land plot in Russia ranges from 3,000 to 5,000 rubles.

Attention! Often, notaries use a percentage equivalent, since the land plot belongs to the category of property subject to assessment, the cost of notary services will consist of a minimum average price of 500 rubles + 0.3% of the value of the property.