Peculiarities of drawing up a gift agreement between legal entities

Donation between legal entities is a civil law transaction. When alienating valuables or property rights, the parties are required to follow a number of rules. Participants must adhere to the established form, remember the content requirements, and take into account the interests of third parties. Neglect of restrictions threatens the invalidity of agreements .

• Prohibition of donation between legal entities
• Legal bypass of restrictions
• Donation agreement between legal entities
• Tax consequences of gifts between legal entities
• Donation as a form of charity

Legislative regulation

According to Article 572 of the Civil Code, the main feature of a deed of gift is the gratuitous transfer of rights, which excludes the creation of mutually beneficial conditions on the part of the donee. Commercial organizations, as the main goal of conducting business, pursue obtaining and increasing profits; this is stated in Article 50 of the same code.

The donation procedure does not provide for the possibility of replenishing income, which is directly indicated by the commercial activities of entrepreneurs. Therefore, according to paragraph 4 of Article 575, it is prohibited to conclude a gift agreement between legal entities. Gifts worth less than 3 thousand rubles are excluded.

The legislation of the Russian Federation does not resolve the issue between the two authorities. Thus, the Tax Code, in part of Article 251, exempts the parent company from taxation of profits received free of charge from a subsidiary, and the Civil Code, together with clause 4 of Article 575, prohibits such procedures.

There are precedents in judicial practice when interested parties, referring to paragraph 2 of Article 170 of the Civil Code, appeal a transaction. Justice recognizes the gift agreement as invalid due to sham. Then, according to Art. 167 of the Civil Code, bilateral restitution is applied to legal entities. Each party returns the property received as a gift. If the mutually beneficial purpose of carrying out this commercial manipulation is proven, then there is no point in talking about gratuitous intentions.

Legal bypass of restrictions

There are a number of cases when the prohibition of donation does not apply to relations between legal entities. All of them have been enshrined in regulations or judicial practice.

Please note that the absence of a price clause in a contract does not automatically make it free of charge. If the content of the transaction implies remuneration, but does not contain the exact amount, the cost of things, rights, works or services is determined at market rates (Article 424 of the Civil Code of the Russian Federation, Resolution of the Supreme Court and Supreme Arbitration Court of the Russian Federation No. 6/8 of 07/01/1996).

A gift is always associated with the intention to transfer values ​​without reciprocation. Assessing the true meaning of the relationship becomes a key issue in retraining cases.

Form of gift agreement

Art. 574 of the Civil Code of the Russian Federation provides provisions regarding the form of the gift agreement, made both orally and in writing. It can be performed orally in all cases except those indicated below:

• organizations that make a gift worth more than three thousand rubles act as a donor;
• under a gift agreement, the gift will be made in the future.

If in the situations described, the contract is concluded only verbally, it is invalid.

The donation itself can occur by transferring property, a symbol (car keys) or title documents to the donee. When donating real estate, the agreement is subject to state registration if it was concluded before March 1, 2013 (in accordance with Federal Law 30.12.2012 N 302-FZ).

Reversal of the agreement

The grounds on which the transferred object is confiscated from the donee are determined by Art. 578 civil legislation. To protect the interests of creditors, the authorities have provided for the return of transferred property in the event that the transaction was formalized without fulfilling the requirements of the insolvency law.

If a subject has donated property acquired from profits received within six months before bankruptcy, then creditors may require the court to declare the transaction unlawful.

Thus, any donations between business entities of a commercial nature for an amount greater than 3 thousand rubles. will be declared illegal. But business entities can use donations and charity. If the cost of the transferred object is more than 3 thousand rubles, then the parties must enter into an agreement in writing.

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Subject of the gift agreement

The subject of the gift agreement is property and rights in relation to the donor or third parties. The donee may be exempt from the need to fulfill certain obligations (debt repayment). A gift is given free of charge without a reciprocal transfer of things or rights. The donor does not have the opportunity to determine the conditions that must be met by the donee to receive the gift.

Receipt of a gift by the donee is accompanied by his payment of a tax in the amount of 13% of the value of the donated property or service. If the donor and recipient are close relatives (spouses, parents, brothers, sisters, grandparents, grandchildren), no tax is paid.

The obligation to transfer the gift also passes to the heirs (successors) of the donor, unless the gift agreement implies otherwise (Article 581 of the Civil Code of the Russian Federation). The heirs of the donee will not be able to receive the gift in his place, unless this is provided for in the contract.

Registration actions

Such actions are often mandatory for one simple reason - most often legal entities transfer valuable property to citizens, the ownership of which is possible only with the re-registration of ownership. For example, when donating an apartment or car. In this case, the gift agreement will be the main document confirming the transfer of ownership.

Information!

Only after completing all three stages will the citizen who received the gift be considered a full owner of the property.
If he does not pay the tax or does not register the gifted property in his name, the transfer of the gift may be canceled. Share:

Features of registration of a gift agreement

The gift agreement (hereinafter referred to as the DD) is drawn up in accordance with the provisions of Chapter. 32 of the Civil Code of the Russian Federation. One party to the transaction is the donor, the other is the donee, and the gift is transferred free of charge. The donor has no right to make a counterclaim for the transfer of money, property, valuables or fulfillment of obligations.

This is also important to know:
Is it possible to challenge a deed of gift for an apartment or house?

A deed of gift is drawn up in writing if it contains a condition about the promise of a gift in the future, as well as in other situations:

• A gift worth over 3,000 rubles. transfers a legal entity;
• Real estate or other property is donated, transactions with which are subject to state registration.

If the written form is not observed, the donation is considered void and does not entail legal consequences. When drawing up a DD, you need to take into account the rules on restrictions and prohibitions on donations, which will be discussed below.

Registration of deed of gift between companies

In most cases, the execution of a gift transaction between business entities is contrary to current legislation. But there are some exceptions.

For example, non-profit organizations can transfer to each other:

• immovable objects and technical devices
• technique
• vehicles
• copyright
• other valuables

According to Art. 575 of the civil legislation, legal entities whose activities relate to the educational or medical sphere are prohibited from accepting gifts of things more expensive than 3 thousand rubles.

It is prohibited to give gifts to both individuals and legal entities. Official powers do not play a role in this.

Persons subject to a donation ban

Art. 575 of the Civil Code of the Russian Federation defines a list of persons in respect of whom giving gifts worth more than three thousand rubles is not allowed. These include:

• minors and incompetent persons making a donation. It is also prohibited to make gifts on their behalf;
• employees of medical and educational institutions, social services and similar organizations, if the donation is made by persons undergoing treatment or education, or relatives of these persons;
• citizens holding government positions, employees of municipal services, the Bank of Russia, if the gifts are related to the positions they hold or the functions they perform;
• commercial organizations receiving gifts from other organizations.

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.

Donation between commercial organizations

A recent (albeit last year) discussion on zakon.ru by Maxim Baranov, in which the Ruling of the RF Armed Forces dated December 1, 2015 N 305-ES15-5505 was considered, gave me a reason to once again think about the issue of applying paragraphs. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation and the understanding of paragraph 10 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 “Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation” (hereinafter referred to as the Information Letter of the Supreme Arbitration Court of the Russian Federation N 120). Before moving on to the main topic of discussion, I will draw attention to some indirect but important points.

1.1) Economic feasibility of the price agreed upon by the parties

The price agreed upon by the parties to the contract is, on the one hand, a purely commercial issue. On the other hand, the courts actively evaluate the agreed price for compliance with its market price and draw far-reaching legal conclusions based on the evaluation results (and this is just an established formal truth):

– Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 11, 2014 N 13846/13: “Meanwhile, a condition of the contract that determines the provision on the part of one person, significantly exceeding the counter provision or the usual market price paid in such cases, may indicate unfair behavior, which is grounds for declaring a transaction invalid in accordance with Articles 10, 168 of the Civil Code of the Russian Federation";

– clause 11 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated December 10, 2013 N 162 “Review of the practice of application by arbitration courts of Articles 178 and 179 of the Civil Code of the Russian Federation”: “In accordance with Article 179 of the Civil Code of the Russian Federation to the elements of the composition established for declaring a transaction invalid as enslaving, refers to the conclusion of a transaction on extremely unfavorable terms, which may be evidenced, in particular, by an excessive excess of the contract price relative to other contracts of this type”;

– clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 N 28 “On some issues related to challenging large transactions and interested party transactions”: “The presence of obvious damage to society is evidenced by the completion of a transaction on obviously and significantly unfavorable conditions, for example , if the provision received by the company under the transaction is two or more times lower than the cost of the provision made by the company in favor of the counterparty. At the same time, the other party must be aware of the presence of obvious damage if this was obvious to any ordinary counterparty at the time the transaction was concluded.”

Thus, comparing the market price established by the court with the price agreed upon by the parties (assessing the equivalence of counter-provisions) is an acceptable starting point for certain legal consequences.

1.2) Pretense and interpretation of the contract

By virtue of paragraph 2 of Art. 170 of the Civil Code of the Russian Federation, a sham transaction, i.e. a transaction that is made with the aim of covering up another transaction, including a transaction on different terms, is void. To a transaction that the parties actually intended, taking into account the essence and content of the transaction, the rules relating to it are applied.

It should be noted:

a) Inadmissibility of doubling the will: the pretense of the contract does not imply the “ordinary” invalidity of a vicious transaction, but a certain separation into a covering (invalid) and a covering (valid) contract. However, sometimes the contract being covered up is also invalid (contains one or another defect).

b) The purpose of the parties to a sham contract is to hide the contract being covered up.

c) Initially, the contract should be qualified, and only then can sham be discussed.

Regarding “c”: on the basis of Part 1 of Art. 431 of the Civil Code of the Russian Federation, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract term, if it is unclear, is established by comparison with other terms and the meaning of the contract as a whole.

According to Part 2 of Art. 431 of the Civil Code of the Russian Federation if the rules contained in Part 1 of Art. 431 of the Civil Code of the Russian Federation, do not allow determining the content of the contract; the actual common will of the parties must be clarified, taking into account the purpose of the contract.

Therefore, from the point of view of positive law, the interpretation of a contract is the following process (simplified):

I) the literal meaning of words and expressions is clarified;

ii) if this is not enough, then the actual common will of the parties is ascertained, taking into account the purpose of the contract.

This is confirmed by the Supreme Court of the Russian Federation in the Determination of October 29, 2013 N 5-КГ13-113: “When determining whether an agreement was concluded between the parties, what is the content of its terms and how they relate to each other, whether the will of the parties coincides with their valid common will, and whether the contract is an imaginary or feigned transaction, the court must apply the rules of interpretation of the contract established by Article 431 of the Civil Code of the Russian Federation. * Thus, the main way to interpret the terms of a contract is to find out the literal meaning of the words and expressions contained in the contract. * Accordingly, the use of another method of interpreting the terms of the contract - ascertaining the actual common will of the parties, taking into account the purpose of the contract - is permissible in the event that the use of the main method of interpretation did not allow us to determine the content of the terms of the contract."

“Due to pretense, only a transaction that is aimed at achieving other legal consequences and covers up a different will of all participants in the transaction can be recognized as invalid” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 2, 2005 N 2601/05, paragraph 87 of the Resolution of the Plenum of the Supreme Court RF dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part 1 of the Civil Code of the Russian Federation”, hereinafter referred to as Resolution of the Plenum of the Armed Forces of the Russian Federation N 25). The “additional” method of interpretation (Part 2 of Article 431 of the Civil Code of the Russian Federation from the point of view of determining the subject of the contract) and identifying the sham of the contract are very similar, but, in my opinion, they should not be mixed.

Regarding “assignment agreements”, quote from paragraph 10 of Information Letter No. 120: “does the agreement on the assignment of rights (claims) cover the gift transaction?”

An agreement on the assignment of a claim is a universal name for various contracts that “move” claims, and it is incorrect to talk about the sham of an agreement on the assignment of a claim until the appropriate qualification is given to the corresponding agreement. For example, an agreement on the assignment of a claim, which is literally a gift agreement, would be strange to consider covering the same gift agreement.

The usual paid agreement on assignment for a certain amount of money is a purchase and sale agreement (clause 4 of Article 454 of the Civil Code of the Russian Federation); agreement on gratuitous assignment - gift agreement (Clause 1, Article 572 of the Civil Code of the Russian Federation). It is possible to allow “payment by demand” for services provided (Article 779 of the Civil Code of the Russian Federation/Article 421 of the Civil Code of the Russian Federation), etc.

And it should be divided when: a) the contract is incorrectly titled and (or) something is incorrectly formulated in it; and b) the contract is intended to achieve other legal consequences. The name of the contract, for example, does not predetermine the qualification of the contract:

– clause 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 26, 2014 N 16 “On freedom of contract”: “When the court assesses whether an agreement is unnamed, it takes into account not its name, but the subject of the agreement, the actual content of the rights and obligations of the parties, distribution risks, etc.”;

– Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 19, 2013 N 8668/13: “The qualification of an agreement is determined not by its name, but by its content.”

Cases when, behind a sham transaction, another, also sham, transaction is discovered (clause 88 of Resolution of the Plenum of the RF Supreme Court No. 25) is a question slightly outside the main aspect of this discussion.

2.1) Donation between commercial organizations

By virtue of paragraphs. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation, donations are not allowed in relations between commercial organizations, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles.

This ban can be interpreted in different ways: as a ban on establishing literal gratuitousness in b2b contracts (“price: 0 rubles,” let’s put it this way), as a ban on gratuitousness exclusively in activities aimed at systematically making a profit, as a ban on outrageously unequal consideration. (i.e., explicitly or implicitly, its absence, in fact).

Moreover, recently: transactions that violate the requirements of the law are presumed to be contestable (clause 1 of Article 168 of the Civil Code of the Russian Federation), voidable transactions can only be challenged by a party to the transaction or a person specified in the law (clause 2 of Article 166 of the Civil Code of the Russian Federation), yes and “the statement about the invalidity of the transaction has no legal significance” (clause 5 of article 166 of the Civil Code of the Russian Federation, clause 1 of article 431.1 of the Civil Code of the Russian Federation). Consequently, today such a ban (which, it seems, protects the interests of the donor’s participants and the donor’s creditors) makes sense only if we recognize the insignificance of such a gift (clause 2 of Article 168 of the Civil Code of the Russian Federation), because in case of insignificance, such transactions can be recognized as invalid by both the participant (on the basis of the law - paragraph 6, clause 1, article 65.2 of the Civil Code of the Russian Federation) and the creditor (in accordance with the explanations of the RF Armed Forces - paragraph 2, clause 78 of the Resolution of the Plenum of the RF Armed Forces No. 25 ). Otherwise (if contestable) – unattainable and meaningless invalidity.

2.2) Gratuitousness and donation

According to paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, a contract is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the contract.

In accordance with the clarifications of the Supreme Arbitration Court of the Russian Federation:

– “The cassation court did not take into account the provisions of paragraph 2 of Article 572 of the Code, by virtue of which a mandatory feature of a gift agreement must be the obvious intention arising from the assignment agreement to transfer the right as a gift” (Resolution of the Supreme Arbitration Court of the Russian Federation of April 25, 2006 N 13952/05 );

– “In accordance with Article 572 of the Civil Code, under a gift agreement, the transfer of property is carried out free of charge, while a mandatory feature of the agreement is the obvious intention arising from it to transfer the property as a gift” (Resolution of the Supreme Arbitration Court of the Russian Federation of June 30, 2009 N 1566/09);

– “Thus, the gift of property presupposes the presence of the will of the donor, who intends to transfer the property belonging to him to another person free of charge precisely as a gift (with the intention of benefiting the donee), and not on any other basis arising from the economic relations of the parties to the transaction * absence of direct consideration provision is a feature of the relationship between the main and subsidiary companies, which from an economic point of view are a single economic entity * Taking into account the control of the company by the concern and the general goals of their economic activities, for the implementation of which there may be a need for redistribution of property (resources) between the main and subsidiary companies, the qualification of any transactions made between such persons to transfer property without direct consideration as a gift is erroneous” (in fact, the gratuitous transfer of property within a holding company is not a gift, Resolution of the Supreme Arbitration Court of the Russian Federation of December 4, 2012 N 8989/12).

3.1) Gratuitousness of quasi-compensated: controversial situations

If the b2b agreement clearly provides for “free/as a gift,” there won’t be any particular questions. But there are some subtle, borderline situations:

I) Person A sells to Person B some property (objectively liquid and expensive) for an amount of money that is close to 0 (for 5 kopecks, for example).

ii) Person A sells some property to Person B for a sum of money that is outrageously below the market value of the property. Those. specifically, not 2nd grade mathematics for lawyers (like “twice or more times”), and then, for example, there will be an example with the alienation of exclusive rights to a trademark for 3,000 rubles. at a market price of 11,000,000 rubles. (≈ 3666 times lower than the cost of provision - this is already a reason to think about it).

Situations I and II can often overlap.

III) Person A sells to Person B some right of a creditor under an obligation (claim) for a sum of money that is outrageously higher than the market value of the right of claim. A refined example: the sale of an objectively hopeless receivable for several hundred million rubles.

In my opinion, in such situations (especially if we take vivid examples of them) we are talking about banal “schemes”, etc.; even if we assume that some such transactions can be economically justified, then this is only a tiny percentage of the total number of such transactions.

And by the way, par. 3 clause 87 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25: “A sham transaction is also considered to be one that is concluded on other terms. For example, when establishing the fact that the parties, in order to cover up a transaction for a large amount, made a transaction for a smaller amount, the court recognizes the transaction concluded between the parties as concluded for a large amount, that is, it applies the rules related to the covered transaction”; The Supreme Court of the Russian Federation and at the level of the resolution of the Plenum of the Supreme Court of the Russian Federation fully allows for pretense in fraud with the price of the contract.

3.2) Gratuitousness of quasi-compensated: judicial practice

“Quasi-compensated gratuitousness” is found in judicial acts. When examining the relevant acts, a “ten” is often visible between the lines (Article 10 of the Civil Code of the Russian Federation), and sometimes judges directly indicate bad faith; those. directly or implicitly, the ground appears for the application of Art. 10, 168 of the Civil Code of the Russian Federation (clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 25). In some cases, one can generally recall the imaginary nature, especially taking into account the following approach: “the parties to such a transaction can also carry out its formal execution for the sake of appearance” (clause 86 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 25).

All these subtle, borderline situations are not an easy question; absolute positions here are questionable. Therefore, the following judicial practice is not axiomatic, of course, but of an informational and educational nature.

So:

– Resolution of the Federal Antimonopoly Service of the Central Election Commission dated April 16, 2014 in case No. A08-8252/2012: “However, the fact of payment of the cost of the sold vehicles at the time of concluding the sale and purchase agreement was not confirmed by the case materials. In concluding that this controversial transaction is a sham, the cassation court proceeds from the fact that the case materials confirm the fact that the parties did not fulfill in full the obligations arising from the sale and purchase agreement dated 05/01/2012. Having interpreted the above agreement, analyzed the behavior of the parties, and also taking into account the presence of close family relations between the parties, the cassation instance comes to the conclusion that it is necessary to refute the presumption of compensation for the transaction, since the parties, in essence, counted on the gratuitous alienation of property in favor of individual entrepreneur N.N. Demina. Based on the above, the court considers that this transaction is a sham, actually covering up a gift agreement”;

– Resolution of the Federal Antimonopoly Service of the North-West District dated May 12, 2014 in case No. A56-30518/2012: “As can be seen from the case materials, the cost of the exclusive rights to the trademarks “Agile Tkachik” and “Nimble Weaver” alienated under the contested agreement amounted to 3,000 rubles. At the same time, according to the report dated October 8, 2012 No. 246/12 presented by the plaintiff, the cost of these rights is 11,000,000 rubles. (rounded). Disagreeing with the conclusions contained in the said report, Priority+ LLC did not provide evidence that the value of the alienated exclusive rights to trademarks established in the contested agreement corresponded to their market value, and also that as a result of the contested transaction, LLC Maximum received economic benefits. In this situation, the courts of the first and appellate instances recognized the report dated October 8, 2012 No. 246/12 as admissible evidence confirming the market value of the exclusive rights to trademarks that are the subject of the disputed agreement, and came to the conclusion that the said agreement actually covers the donation transaction. Taking into account the fact that, by virtue of subparagraph 4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, in relations between commercial organizations, which are Maximum LLC and Priority+ LLC, donations are not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles , and also taking into account that the exclusive rights to the disputed trademarks cannot be classified as ordinary gifts, the courts declared the disputed agreement invalid and applied the consequences of its invalidity";

– Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 15, 2011 in case No. A40-109685/10: “By the Resolution of 04/22/2010 by the bailiff of the SMO for IOVIP UFSSP for the Moscow Region on the basis of writ of execution N 031268630 dated 03/01/2010, issued in pursuance of the decision of the Naro-Fominsk City Court dated November 27, 2009 in case No. 2-5003/09 on the recovery from the debtor of IP Ermakov V.V. in favor of the claimant Aksakova N.V. cash in the amount of RUB 2,783,729. 63 kopecks — foreclosure was imposed on the funds of Ermakov V.V. on current account N 40802810800000000336 in OJSC CB "SDM-BANK" * Subsequently, 07/12/2010 between individual entrepreneur V.V. Ermakov (assignor) and IP Plavinskaya N.E. (assignee) an assignment agreement has been concluded, under the terms of which the assignor transfers in full, and the assignee accepts and pays the assignor's rights of claim against COMFIS LLC for payment of the rent due under the lease agreement dated May 23, 2007 N CFS-001 * p 1.4., 2.1. The assignment agreement establishes that the moment of transfer of the right of claim corresponds to the moment of payment of the price of the assigned right by offset with a counter homogeneous monetary claim. In relation to the provisions of paragraph 4 of Art. 575 of the Civil Code of the Russian Federation, donations are not allowed in relations between individual entrepreneurs. Due to the norms of the current civil legislation and business customs, consideration for transactions between business entities is presumed. However, the case materials do not provide evidence of the existence as of July 12, 2010 of a monetary obligation of IP Ermakov V.V. before IP Plavinskaya N.E. in the amount of 3,000,000 rubles. To the proposal of the appellate court, neither IP Ermakov V.V. nor IP Plavinskaya N.E. no additional evidence was provided of the existence of the right of claim, against which the right to claim payment for the right of claim assigned under the assignment agreement dated July 12, 2010 was terminated. Thus, the plaintiff did not provide evidence of the transfer to IP Plavinskaya N.E. rights of claim under the lease agreement in the manner provided for in clauses 1.4, 2.1 of the assignment agreement";

– Resolution of the Federal Antimonopoly Service of the North-West District dated May 13, 2014 in case No. A56-33889/2012: “The provision of the additional agreement on payment of 50 percent of the actually collected amount of the debt does not allow us to recognize that the parties reached an agreement on the price of the contract: in addition to the fact that it the agreement cannot be recognized as concluded; the provision specified in it means that the Company should not pay the Company any amounts on account of the assignment agreement unless it fully recovers the debt from the Company. Consequently, the agreement obviously assumed that the assignment would be gratuitous in the event of the Company’s complete failure to receive the debt from the Enterprise. The absence of a price in the assignment agreement, the preparation of a unilateral agreement presented only in the materials of this case, the absence for a long period of time of payment on the part of the Company on account of the right assigned to it by the Company, taking into account that from the date of the conclusion of the assignment agreement, actually two years passed before the presentation by the bankruptcy manager demands for recognition of the contract as invalid, failure of the parties to take any actions to resolve the issue of payment of the assignment - all these circumstances, assessed by the court in their entirety, made it possible to recognize as established that when concluding the contract, the parties assumed that it would be gratuitous. “Nothing else has been proven in the case”;

– Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 26, 2013 N 7317/13: “When considering the issue of compensation for a property purchase and sale transaction, which provides for payment by bills of exchange, the courts have the right to evaluate arguments related to the equivalence of the value of property and bills of exchange * In this case, the court The appellate court found that the mentioned bills of exchange could not initially be regarded as payment under the sale and purchase agreement dated September 13, 2008, and this circumstance was obvious to the parties * Taking into account the stated circumstances, the appellate court made the correct conclusion that the parties did not initially intend payment for the disputed property under the agreement dated 09/13/2008 * The appellate court, having interpreted the sale and purchase agreement dated 09/13/2008, having analyzed the behavior of the parties, came to the conclusion that it was necessary to refute the presumption of compensation and found that the parties, in fact, were counting on the gratuitous alienation of property in favor of the Penza-Trade society. In this regard, the court concluded that the purchase and sale agreement dated September 13, 2008 is void according to paragraph 2 of Article 170 of the Civil Code of the Russian Federation, since it covers a gift agreement prohibited between commercial organizations (subparagraph 4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation).”

Regarding the case when they came to their senses a little later and drew something, the following examples can also be noted:

– Resolution of the Federal Antimonopoly Service of the Far East Branch of July 24, 2012 N F03-2164/2012: “The Court of Appeal, based on the fact that the parties to the disputed agreement are an individual entrepreneur - the head of the peasant (farm) enterprise A.M. Kobchenko and the Dalnegorsky agricultural production complex, in the disputed transaction, there is no provision for a counter-provision of property upon the transfer of all property of the cooperative to the entrepreneur, and therefore paragraph 4 of Article 575 of the Civil Code of the Russian Federation is applicable to these legal relations, according to which donation is not allowed in relations between commercial organizations, I came to the correct conclusion that the plaintiffs’ demands for declaring the disputed transaction void by virtue of Article 168 of the Civil Code of the Russian Federation. At the same time, the appellate court did not accept as evidence of the absence of a donation the set-off agreement signed by the parties after the donation transaction dated December 25, 2009, on the basis of which the parties set off the value of the property transferred to the entrepreneur under the disputed transaction to pay off the debt of the cooperative under loan agreements, indicating the absence in the case materials, evidence of the loan and the presence of the will of the parties when making a transaction for the transfer of property on account of any counter-provision. Taking into account the above, the resolution adopted in the case corresponds to the circumstances established in the case, the evidence available in the case and the norms of substantive law that are subject to application”;

– Resolution of the FAS VSO dated October 29, 2007 in case No. A19-4490/07: “Clause 5 of the lease agreement dated February 20, 2006 states that the party assigns the rights and obligations under the lease agreement No. 2964 dated May 12, 2005 for the land plot free of charge . Thus, based on the literal interpretation of this paragraph, it follows that this agreement is gratuitous. The fact that the parties entered into an additional agreement to the rental agreement, on the basis of which subsequently (01/20/2007 according to the receipt for the cash receipt order No. 1-01/2007) by entrepreneur V.A. Gusev payment was made for the transfer of rights and obligations to him under lease agreement No. 2964 dated May 12, 2005, cannot affect the legality of the transaction, since in accordance with Articles 164, 389, 609 of the Civil Code of the Russian Federation, Article 26 of the Land Code of the Russian Federation, the controversial transaction is subject to state registration".

It is worth noting that the rule from paragraphs. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation is also applied by the courts in relation to citizens engaged in entrepreneurial activities, with reference to paragraph 3 of Art. 23 Civil Code of the Russian Federation.

Taking into account all of the above, including changes in legislation, interesting questions arise:

a) What is the prohibition from paragraphs aimed at? 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation and how to interpret it?

b) Does this ban make sense now? Insignificance?

I wonder what the RF Armed Forces, and not only the RF Armed Forces, think about these issues - your opinion is also very interesting, dear colleagues.

Features of donations made between legal entities

A donation is understood as a donation of property or rights made for generally beneficial purposes (clause 1 of Article 582 of the Code). Donations can be made in favor of the following legal entities:

• medical and educational institutions;
• social service organizations;
• charitable foundations;
• scientific organizations;
• museums and cultural institutions;
• public, religious and other non-profit organizations.

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A donation may be conditional on the use of the transferred item for a specific purpose (clause 3 of Article 582 of the Code). A legal entity that accepts a donation for a specified purpose must keep separate records of transactions carried out with such property. In the event that the further use of such property for the specified purpose becomes impossible due to changed circumstances, the use of the property for another purpose is possible only:

• with the consent of the donor;
• by a court decision in the event that the donor legal entity has been liquidated.

If the above rules are violated, the donor legal entity or its successors may demand cancellation of the donation.

The donation cancellation rules established by Art. 578 of the Code, and the rules of succession with the promise of a gift, provided for in Art. 518 Code.

Donation as a form of charity

Charitable activities mean disinterested, i.e., free or carried out on preferential terms, activities, for example:

• transfer of funds and other property, including intellectual property;
• execution of work;
• provision of services;
• providing other support.

This definition is given in Art. 1 of the Law “On Charitable Activities and Volunteering (Volunteering)” dated August 11, 1995 No. 135-FZ (hereinafter referred to as the Charity Law). The goals of selfless help are varied:

• social support for low-income citizens;
• providing assistance to individuals affected by natural and man-made disasters;
• animal protection and environmental protection, etc.

Legal entities, along with individuals, have the right to unhindered implementation of charitable activities, as well as freedom to choose its goals (Clause 1, Article 4 of the Law on Charity). Philanthropists can determine the purposes and use of their donations.

Legal entities can carry out charitable activities individually or collectively, with or without the formation of a charitable organization.

Taxes on gifts between legal entities

Since the transfer of property by a legal entity, according to paragraph 1 of Art. 146 of the Civil Code, is recognized as its sale, which is subject to VAT taxation, the donor is recognized as a taxpayer of value added tax. Thus, the tax liability for a gift arises not only from the donee, but also from the donor.

The tax base for paying VAT, according to Art. 154 of the Tax Code is determined based on the market value of goods, without including the amount of the specified tax.

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At the same time, expenses incurred in connection with the donation (in the form of the value of the donated property and other expenses associated with its transfer), according to clause 16 of Art. 270 of the Tax Code are not subject to accounting when the donor calculates corporate income tax.

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The recipient legal entity takes into account the property received as a gift for the purpose of calculating corporate income tax as non-operating income (Article 250 of the Tax Code). When calculating the specified tax, the assessment of the profit received is carried out based on the market value of the property received (Article 40 of the Tax Code), but not lower than its residual value.

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Important Information about the value of the taxable object must be confirmed by documents (for example, a check) or by conducting an assessment. To conduct an objective assessment, an organization must use the services of an expert appraiser.

According to paragraphs. 1 clause 1 art. 251 of the Tax Code, the legislator also provided for cases of exemption from income tax when organizations receive gifts from:

1. Organizations whose authorized capital consists of more than 50% of the contribution of the donee legal entity. faces;
2. Organizations whose contribution to the authorized capital of the donee exceeds 50%.

Sample document

One of the most difficult stages. The main problem is that there is no single template for such an agreement, and the way it is written highly depends on the gift itself and the reason for its transfer. However, such an agreement in any case must contain the following information:

• Legal entity data;
• Details of the recipient of the gift;
• Information about the gift;
• Its cost;
• Reason for giving the gift.

Download

Sample gift agreement between legal entities.doc

Moreover, such an agreement must bear the seal of a legal entity. Once it is drawn up and signed, you can move on to the next stage.

What is a gift restriction?

Unlike a prohibition, a restriction on a gift implies the possibility of drawing up a deed of gift, but subject to the conditions established by Art. 576 Civil Code of the Russian Federation:

• A company that owns property by right of operational or economic management is required to obtain the written consent of the owner for the transaction;
• Property that is jointly owned is donated with the written consent of the remaining owners;
• The right of claim is transferred under the DD to the donee with prior notification of the debtor about the upcoming transaction. The right to claim alimony and other payments cannot be transferred if they are related to the identity of the creditor;
• The transfer of debt to the donor is carried out with the consent of the creditor.

Important! You can draw up a DD using a notarized power of attorney, but you must provide information about the subject of the donation and the recipient, otherwise it is considered void.

The procedure for challenging a gift agreement

To invalidate a DD, you need to follow several steps:

1. Collect evidence confirming the imaginary, feigned or insignificant nature of the transaction. These may be accounting documents, audio or video recordings, and other documents. Testimony from witnesses will also come in handy.
2. Fill out a statement of claim and submit it to the district court at the location of the defendant. If the right to real estate is disputed - at the location of the property.
3. Participate in the trial and wait for a decision to be made. It is issued by a single judge and comes into force after 30 days.

Based on the court decision, the defendant undertakes to eliminate the circumstances that caused the plaintiff to go to court.

Who has the right to challenge a deed of gift if donation is prohibited?

If a gift is prohibited or limited, the following persons have the right to demand recognition of the contract as invalid:

• Actual owners of gifts transferred without consent;
• The spouse of the donor, if common property was donated without notarial permission;
• Heirs, creditors of the donor.

Representatives of guardianship authorities also have the right to demand cancellation of the transaction, acting in the interests of minors, incompetent or partially capable citizens.

Procedure for execution and registration of a transaction

Before registration, the donor and the recipient must settle all the nuances regarding the subject of the gift.

To conclude an agreement and formalize a transaction, you need to contact a notary with a certain list of documents:

• application for alienation of property;
• documents confirming ownership of property;
• registration documents of both companies;
• powers of attorney confirming authority to enter into transactions of this kind;
• passports of the transaction representatives;
• other documents at the request of the notary.

After checking the legality of the proposed transaction, as well as certification by the signature and seal of an employee of the notary office, the agreement is signed by legal entities.

Next, the transaction must be registered with the authorized registration authority.

Registration of assets is also required by law for the accounting departments of organizations.

The accounting service of the giving party must reflect the expense for the relevant items, since there has been a decrease in fixed assets by the amount of the gift.

The receiving party reflects the income of fixed assets taking into account depreciation.

When is it possible to cancel a donation?

You can cancel the transaction in any situation where donation is prohibited.

This usually happens when:

• Expensive property of the child was donated;
• The donor had no rights to the gift belonging to another person;
• The company did not obtain the owner’s consent to alienate his property;
• The spouse donated real estate purchased during marriage without the consent of the second owner.

Additional grounds for cancellation are indicated in Art. 578 Civil Code of the Russian Federation. The donor has the right to demand cancellation of the DD if, after the transaction, the donee has made an attempt on his life and health, mistreats the gift and there is a risk of its irretrievable loss. Cancellation is also possible in the event of the death of the donee, if this is provided for in the DD.

The heirs of the former owner of the gift also have the right to demand cancellation if he died due to the fault of the other party to the transaction. A similar opportunity is provided to the donor’s creditors when alienating property under a DD 6 months before filing a bankruptcy petition while engaging in entrepreneurial activity.

Documentation

When visiting the court, you need to present a number of documents:

• Statement of claim;
• Passport;
• Gift documents (if available);
• Receipt for payment of state duty.

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At the same time, evidence is provided.

Partial gift restrictions in 2021

According to the provisions described in Article 576 of the Civil Code of the Russian Federation, there are a number of conditions limiting donations that apply to legal entities and individuals:

1. Donation of property owned by several persons as owners becomes possible only with the consent of the remaining property owners.
2. Legal entities are prohibited from donating property under their management that belongs to another owner without his knowledge and written consent.
3. A gift by a trustee can only be made with the content of the power of attorney indicating the object of the gift and all the data of the donee party whom it represents.
4. The fulfillment of duties by the donor instead of the donee becomes possible only if all the conditions listed in Article 313 of the Civil Code are met.
5. The right of claim to third parties can be transferred as a gift only if the standards described in Articles 382-386 of the Civil Code of the Russian Federation and Articles 3880389 of the same document are observed.
6. Articles 391-392 of the Civil Code regulate transactions related to the donor’s acceptance of financial obligations of the donee to pay funds.

general information

According to the current legislation of the Russian Federation, organizations, acting as a donor, have the opportunity to make gifts in favor of individuals. However, although these legal relations in 2021 are still regulated by the norms established in Chapter 32 of the Civil Code, they have many features that must be observed when drawing up an agreement for the gratuitous transfer of property, executing the transaction and canceling it if necessary .

In addition, a legal entity needs to carefully study the taxation of a deed of gift with an individual, because after signing the agreement, the obligation to pay the contribution falls on the donor.

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.

Types of possible gifts

The following can act as a gift:

• intangible assets (for example, copyright or related rights). The contract must be drawn up with the condition of indicating clear competencies that the donee can dispose of;
• materials and raw materials;
• real estate objects or rights to them;
• cash (cash or non-cash), securities, repayment of loans of the donee. The conclusion of the agreement occurs subject to the giving of a gift in the amount of more than 3,000 rubles. If the contract contains not just the moment of transfer of the gift, but also a promise to give under certain conditions, then the donee has the right to go to court and demand what was promised if the donor has not fulfilled his obligation;
• equipment and tools. Contractual obligations must be formalized by the registration authority;
• transport. The deed of gift must contain a note about the type of car body and its number, make, model of the car, shortcomings, damage, that is, about what such a gift will specify;
• another value.

All gifts that require registration with the authorities are subject to such in order to formalize the right to use them by the new owner.

What gifts are prohibited?

Among the things that cannot be given are:

• luxury goods, collectibles and other expensive items;
• property that has been withdrawn from civilian use (military equipment, weapons, things recognized as rare, toxic substances, natural resources).

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.