If donation is prohibited, then why is it used?
Donation
A gift agreement between commercial companies exceeding 3,000 rubles is prohibited (Clause 4, Article 575 of the Civil Code of the Russian Federation). This requirement is logical. According to Art. 50 of the Civil Code of the Russian Federation, the purpose of conducting the activities of a commercial company is to make a profit. Does this mean that the court will recognize such a transaction as void? Yes. At the very least, we do not recommend drawing up an agreement with this name.
Let's consider several important conditions:
- The restriction described above does not apply to the case when the donor is a commercial company and the recipient is a non-profit organization or individual (see the appendix to the article for a sample agreement).
- If we are talking about charity, then a donation agreement is used.
- If the value of the gift is more than 3,000 rubles and one of the parties is a legal entity, a written form is required (clause 2 of Article 574 of the Civil Code of the Russian Federation).
Broadcast
Is an agreement for the gratuitous transfer of property different from a gift agreement? From the point of view of some lawyers, yes. If the organization is the founder of another legal entity, then it is vitally interested in the commercial success of the “daughter”. In the absence of explicit compensation in the form of money or counter services, implicit compensation follows from the very content of corporate relationships.
From this perspective, Art. 251 of the Tax Code of the Russian Federation, an agreement on the gratuitous transfer of property from the founder to a legal entity does not contradict civil law.
Financial assistance from the founder on a repayable basis: postings
Free assistance from the founder is a common way to help the company. It is formalized in a written decision, which indicates the purposes for which the transferred assets should be directed. Money is credited from the founder using the other income/expenses account – 91.
| Operations | D/t | K/t |
| Non-refundable financial assistance from the founder to the bank account | 51 | 91/1 |
| Arrival of OS | ||
| An OS object was transferred as a gratuitous receipt | 08 | 98/2 |
| Transferring the OS into operation | 01 | 08 |
| Accrual of depreciation on the OS | 20 | 02 |
| The cost of fixed assets is reflected as part of other income | 98/2 | 91/1 |
| Transfer of materials | ||
| Inventory and materials transferred from the founder | 10 | 98/2 |
| Materials written off for production | 20 | 10 |
| The cost of inventory items is reflected in other income | 98/2 | 91/1 |
| Help to pay off losses | ||
| A decision was made to pay off the loss | 75 | 84 |
| Crediting funds to cover the loss | 51 | 75 |
| Contribution of money by the founder to the authorized capital | ||
| Funds contributed to the management company | 75,50,51 | 80 |
| Contribution made: | ||
| - cash to the cash desk | 50 | 75 |
| - goods | 41 | 75 |
| — Inventory | 10 | 75 |
| - OS | 08 | 75 |
| Transfer by the founder of OS to increase net assets | 08 | 83 |
| Replenishment of the reserve fund | ||
| Funds contributed by the founder to add reserve capital | 50,51 | 91/1 |
| The company's income for the year was determined | 91/1 | 99 |
| Net annual income calculated | 99 | 84 |
| Deductions were made to the reserve fund in accordance with the charter | 84 | 82 |
We suggest you familiarize yourself with: Theft by deception or breach of trust
A cash loan is repayable financial assistance from the founder, returned to the founder after a specified period. Funds are transferred on the basis of a loan agreement. It can be interest-bearing or non-interest-bearing.
The terms of the loan are specified in the agreement:
- If the loan is issued with interest, then the interest rate is specified in the contract;
- An interest-free loan involves no interest at all.
In addition, agreements often stipulate for what purposes the funds should be spent.
| Operations | D/t | K/t |
| Funds received under a loan agreement | 51 | 66,67 |
| Interest on the loan is reflected | 91 | 66,67 |
| Borrowed funds were returned to the founder | 66,67 | 51 |
| Loan interest transferred | 66,67 | 51 |
Transfer rules
When transferring assets, it is important to comply with all legal requirements and guidelines. We recommend following the instructions on how to transfer property from one organization to another free of charge. If there is any inaccuracy, the contract is considered void, which is fraught with danger for both parties: the donor and the donee.
If the gratuitous transfer of assets is carried out in the form of a gift, enter into a gift agreement (clause 1 of Article 572 of the Civil Code of the Russian Federation). The parties have the right to conclude it both orally and in writing. Conclude a document in writing in the following cases (clauses 2, 3 of Article 574 of the Civil Code of the Russian Federation):
- the value of the gift exceeds 3,000 rubles;
- the contract contains a promise of donation in the future;
- donate real estate.
Document the transfer (including donation) of a fixed asset with an act of acceptance and transfer of non-financial asset objects.
IMPORTANT!
The conclusion of a gift agreement between unrelated legal entities is legal only if one of the parties is a non-profit organization. That is, an agreement is drawn up between an institution and another legal entity. Moreover, the institution can act both as a donor and as a recipient.
There are no restrictions for cases of receiving a gift from ordinary citizens. The gratuitous transfer of property from an individual to a legal entity is not prohibited by civil law. Please note that if an individual gives a gift worth more than 3,000 rubles, then written documentation of the gift is required.
Contractual agreement to transfer property free of charge for charitable purposes
Most large companies help needy categories of civilians.
This event must be documented, since its procedure is regulated by federal law. Free transfer of property is also possible between legal entities and individuals. The peculiarity of this procedure is that the recipient of material assets is exempt from taxation, and the funds are spent in strictly limited areas. The list of property values that can be donated for the purpose of charity is also strictly limited. But real estate is included in this list.
The form of the contractual agreement for the gratuitous transfer of real estate for charitable purposes is not strictly regulated; the parties to the transaction can make their own adjustments. The main thing is to provide a sample document for review by a lawyer.
Accounting and tax accounting
Free assistance from the founder. Postings
Accounting depends on what is being transferred, whether there are associated expenses, and what tax regime the company has. When a gratuitous transfer of property occurs between legal entities, transactions from the parent organization are collected in debit 91 of the “Other income and expenses” account.
The receiving institution credits 82, 83, or 91 accounts. Experts have different points of view on the use of these accounts. In practice, 83 or 91 counts are more often used.
Free assistance from the founder - the postings for the subsidiary company will be as follows:
| Debit | Credit | Contents of operation |
| 51 | 91 | The financial assistance of the founder is taken into account. Funds have been deposited into the current account |
| 10 | Reflected materials received from the founder | |
| 41 | Goods transferred by the founder to the subsidiary company are reflected |
The founder has the opposite information on how to transfer materials to another organization free of charge:
| Debit | Credit | Contents of operation |
| 91-2 | 10 | The write-off of materials transferred under a gift agreement in favor of a subsidiary is reflected |
Income tax
In tax accounting, the parent company has neither income nor expense. Hence, companies applying PBU 18/02 have a permanent tax difference. It is drawn up in an accounting certificate and reflected by posting Dt 99 subaccount “Permanent tax liability” Kt 68 subaccount “Calculations for income tax”.
Accrued VAT is not included in expenses (Clause 16, Article 270 of the Tax Code of the Russian Federation).
For the organization receiving the property, if the founding company has a share of more than 50%, income tax does not arise (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation). When applying PBU 18/02, a permanent tax asset arises.
VAT
In general, the gratuitous transfer of property rights is recognized as a sale (clause 1 of Article 39 of the Tax Code of the Russian Federation, subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation, for exceptions see clause 2 of Article 146 and Article 149 of the Tax Code of the Russian Federation). The company must calculate and pay VAT, issue an invoice and include it in the sales book.
VAT is not charged if:
- funds are transferred (clause 1, clause 3, article 39 of the Tax Code of the Russian Federation);
- The host organization is non-profit.
There are other cases (Article 146 of the Tax Code of the Russian Federation).
simplified tax system
The parent organization does not generate income (Articles 346.15, 249, 250 of the Tax Code of the Russian Federation). If the company takes into account expenses, then, according to Art. 346.16 of the Tax Code of the Russian Federation, the residual value of property and related expenses are not taken into account.
If a company uses the simplified tax system to give up property before the normative deadline (paragraph 14, paragraph 3, article 346.16), then expenses must be restored. The gratuitous transfer of property under the simplified tax system requires the restoration of expenses only in relation to fixed assets. According to paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation, when transferring a fixed asset before the expiration of three years from the date of recognition of the costs of its acquisition (before the expiration of 10 years, if the useful life of the fixed asset exceeds 15 years), the donor must recalculate the tax base for the entire period of use of the specified fixed asset.
To recalculate the tax base, expenses for the acquisition of fixed assets should be excluded from expenses. It is allowed to take into account the amounts of depreciation accrued in relation to this fixed asset in accordance with the provisions of Chapter. 25 Tax Code of the Russian Federation. This position is given in letters of the Ministry of Finance of Russia dated 04/11/2016 No. 03-03-06/3/20413, dated 04/14/2014 No. 03-11-06/2/16837.
The receiving party will not have any income if the parent company owns more than 50% of the authorized capital (Article 346.15 of the Tax Code of the Russian Federation, paragraph 11, paragraph 1, Article 251 of the Tax Code of the Russian Federation). Otherwise, other income will arise.
UTII
If an organization operates only on UTII, the receipt for free will have to be carried out under the general or simplified regime.
Legal documents
- Art. 575 Civil Code of the Russian Federation
- Art. 50 Civil Code of the Russian Federation
- Art. 574 Civil Code of the Russian Federation
- Art. 251 Tax Code of the Russian Federation
- Art. 572 Civil Code of the Russian Federation
- PBU 18/02
- Art. 270 Tax Code of the Russian Federation
- Art. 251 Tax Code of the Russian Federation
- Art. 39 Tax Code of the Russian Federation
- Art. 146 Tax Code of the Russian Federation
- Art. 149 Tax Code of the Russian Federation
- Art. 346.15
- 249
- 250 Tax Code of the Russian Federation
- Art. 346.16 Tax Code of the Russian Federation
- Art. 346.15 Tax Code of the Russian Federation
- Art. 251 Tax Code of the Russian Federation
Free assistance from the founder
The easiest way to provide financial assistance is for the founder to simply donate the required amount of money to the company, while drawing up a gift agreement. Can the company or the founder expect some kind of catch here?
From a legal point of view, risks may arise if the founder is not a citizen, but an organization (parent company). As you know, donations between two commercial organizations amounting to more than 3,000 rubles are prohibited (Clause 1, Article 575 of the Civil Code of the Russian Federation). If the parties violate this prohibition, the transaction may be declared void if a legal dispute arises (Article 168 of the Civil Code of the Russian Federation).
Cheat sheet on the article from the editors of BUKH.1S for those who do not have time
1. If the company needs money, the founder can help with his own funds.
2. Options for help from the founder:
- gratuitous assistance formalized by a gift agreement;
- remunerative assistance formalized by a loan agreement with or without interest;
- the founder's contribution to the company's property;
- additional contribution to the authorized capital.
3. In order to avoid being subject to taxes, it is important for a company to choose in advance the correct method of obtaining assistance from the founder, taking into account all factors.
Is founder's assistance taxable? If the assisting founder owns a share of 50% or less, then the company that received the money must pay income tax on it. For her, the amount received will be recognized as non-operating income, and the exemption provided for in paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation applies only to those situations when assistance comes from a founder who owns more than 50% of the authorized capital.
In general, only a founder who owns more than 50% of the authorized capital can donate money to a company without consequences.
Cost of gratuitous transfer of property assets
Current Russian legislation, in particular the Civil Code, prohibits making gifts to commercial organizations in relation to their partners. Despite this, the gratuitous transfer of property, financial resources, and the provision of various types of services between such organizations are quite common.
It should also be noted that the law allows gifts to be made by individuals. Taking this fact into account, the Tax Code provided for appropriate provisions obliging the collection of property tax when transferring property for free use.
During the inspection process, tax authorities check such transactions with special care and often find inconsistencies that lead to additional payments and penalties. Therefore, the gratuitous transfer of property must be approached very scrupulously in order to avoid additional costs.
