Gratuitous transfer of property - common type of civil law relations in the Russian Federation. What is its specificity? What are the types of agreements on the gratuitous transfer of property? What restrictions regarding such transactions are provided for by Russian law?
The essence of the gratuitous transfer of property
What is a gratuitous transfer of property? According to a common definition, this is a procedure in which a certain subject of legal relations - an individual or an organization - assigns ownership of certain property to the benefit of other persons, without charging a fee in return and without requiring other preferences.
The subjects of the transactions in question can be both commercial enterprises and those institutions that are not related to business. Moreover, in Russian legal practice, the features of participation of organizations with different status in the procedures for the transfer of property without compensation may differ. Further in the article we will study the corresponding aspect.
The phenomenon in question from the point of view of legal classification can be expressed as a gift or donation. This is not the same thing. Many experts believe that there is a significant difference between giving and giving. A little later we will study in more detail the relevant aspect.
The practical significance of the donation
What types of civil relations are most often used for free transfer of property? It can be noted that the spectrum of those is very wide. However, the corresponding type of legal relationship in business acquired particular popularity.
The fact is that, according to Article 575 of the Civil Code of the Russian Federation, one commercial enterprise cannot give to another (as part of official transactions) property worth more than 3,000 rubles. However, they can receive gifts from individuals, NGOs, as well as state and municipal structures. In practice, this may mean that the founders of organizations in the status of individuals can also transfer property to their commercial enterprises for free. What gives such an opportunity in practice?
Article 251 of the Tax Code states that property that the company received free of charge may not be included in the category of non-operating income. That is, the tax base due to the corresponding type of assets does not increase. But on one condition - if a person owns more than 50% in the authorized capital of the company.
Share distribution nuances
A fundamentally important criterion is that the donor must possess the above-mentioned share in the ownership of the company individually. That is, for example, if one person owns 30% of the company, the other 40%, and they own, for example, a truck crane, then donating it to your company without taxation, however, is impossible. If they draw up an appropriate gift agreement, they will have to pay income tax provided for in Article 250 of the Tax Code of the Russian Federation. At least, such a position, as noted by lawyers, is considered generally accepted in the structures of the Federal Tax Service of Russia.
Business Gift Limitations
Above, we noted the most important nuance regarding the transfer of property at no cost to commercial organizations - the value of the respective assets cannot be more than 3 thousand rubles. If the gift object is worth more, then the receiving party needs to register it as a purchase.
Thus, gratuitous transfer of real estate, for example, in most cases cannot be carried out, since it is unlikely that the market price of buildings and structures will be less than 3 thousand rubles. However, in the practice of business interaction, there are other schemes within which, in fact, the gratuitous aspect of legal relations is applicable, even if the value of the property is higher than the indicated limit. A little later we will explore options for alternative transactions that are often used by Russian organizations.
Actually, an exception to this rule may be the procedure described above, in which the main owner transfers the property in favor of his company. Also, the restriction in question does not apply if the property is transferred, for example, by the holding in favor of one of its subsidiaries.
Giving or giving?
Let us now consider the aspect that reflects the differences between the two main procedures, involving the free transfer of property - gift and donation. In order to understand the difference between the two marked legal categories, it would be advisable to refer to the provisions of the Civil Code. According to the code, a donation agreement is a somewhat broader concept than a transaction fixing a donation. What is this expressed in?
According to the gift agreement, one of the parties to the legal relationship transfers free of charge (or, alternatively, undertakes to transfer) another certain type of property. A key feature of such a deal is gratuitousness. That is, the owner of the property does not receive any counterclaims from the donor.
However, the gratuitous transfer of property does not completely exclude the scenario in which the donor will establish some restrictions on the use of the property by the new owner. Among those, as some lawyers have noted, there may be a requirement that reflects the use of property exclusively for generally useful, socially oriented purposes. Gratuitous transfer of property in this case will most likely be recognized as a donation.
Legal relationships in which a donation is considered the basis of a transaction are not typical of a business. Basically, through such communications, state or municipal property is transferred in favor of the relevant non-profit organizations. What is the reason that such transactions are the prerogative of structures not involved in business?
Donation is the prerogative of the nonprofit
First of all, it can be noted that the contract for the gratuitous transfer of property as part of a gift implies that the owner of the property transfers the thing donated directly to him, the property right connected with it, or some concession (for example, debt forgiveness). In turn, when drawing up an agreement, the subject of which is a donation, the basis of the relevant transaction can be only a thing or property right to it. The provision of concessions or other preferences within the framework of such a legal category as a donation, as noted by lawyers, cannot be carried out.
That is, in cases where state or municipal property is transferred, the credit aspect between the subjects of legal relations (which, theoretically, can be traced in the format of budget loans), should not be affected.
Also, differences can be traced in such a nuance as the status of the recipient of the property as part of a gratuitous transfer. As a rule, when concluding a donation agreement, the circle of persons in whose favor assets are transferred is much narrower than in the case of donation.Non-profit organizations are recognized as the main subjects of legal relations within the framework of donations as a party accepting property. Including state institutions, in whose favor state property may be transferred, as an option. Thus, in general, donation cannot be made in favor of a commercial structure.
Taxation on gratuitous transfer of property
What are the features of taxation that characterize the gratuitous transfer of property? We have already designated one of those. If the owner of a business company, which owns more than 50% of the company's assets, transfers property to the benefit of his organization free of charge, then it is not considered to be non-operating income.
In turn, assets received by organizations as part of a gratuitous transfer are generally subject to taxation. An exception is when property is transferred as part of a donation. However, as we noted above, in general, this procedure is relevant for non-profit organizations.
Thus, are not subject to inclusion in non-operating income:
- gratuitous transfer of property from the founder, provided that he owns more than 50% in the possession of the company;
- if the subject of the contract is a donation, which is applicable only if the party accepting the property is a non-profit organization.
If the status of the organization or the specifics of legal relations with other business entities does not meet the relevant criteria, then the tax on the property received will need to be paid.
It is also probably worth noting that the property of the organization, received free of charge, will not be taken into account in the aspect of taxation if the company operates on UTII. Actually, in this case, no income is important in the activity of the enterprise - it pays fixed tax contributions.
Gift agreements with the participation of IP
The deals are specific enough, the subject of which is the transfer of property free of charge in favor of individual entrepreneurs. The peculiarity of the corresponding type of legal relationship is that IP, on the one hand, is not a legal entity. Accordingly, the rule according to which the property of the organization received as a gift should be included in non-operating income may be considered irrelevant for entrepreneurs. On the other hand, IP, surprisingly, perhaps, it would be more profitable to draw up the corresponding transaction on the basis of the rights of the subject of commercial legal relations. Why?
From the point of view of the Tax Code of the Russian Federation, individual entrepreneurs must pay the state, in general, the same types of taxes as a legal entity. That is, it can be a profit tax (with a general mode of fees) or a transfer of funds within the framework of “simplification”. In many cases, the corresponding fees are lower than the personal income tax rate, which is 13%. This is precisely the tax rate if an individual receives something as a gift from non-relatives. Obviously, if an individual entrepreneur accepts property free of charge, then it is probably more profitable for him to do this as a subject of commercial legal relations, provided that he and the donor are not relatives.
Royalty free rental
Russian law provides for such a thing as transfer of property for free use. In another way, this type of legal relationship is called a loan. Gratuitous transfer of property for rent is a common type of business transaction. At the very beginning of the article, we noted that the law provides for a limitation in the value of transferred assets in favor of commercial organizations in the amount of 3 thousand rubles. As an alternative, businesses use the marked type of transaction.The main advantage of such legal relations is that neither the owner of the property, nor his user, as part of a free rental purchase, have any obligations to calculate taxes.
Actually, the aspect that reflects how taxes are accrued is also interesting. Consider it.
Tax calculation
Calculation of taxes on property that is received free of charge depends, first of all, on the taxation regime in the company. That is, with the general system, the rate is 20%. When USN - 2 options. The simplest formula is applied if the company operates according to the scheme when 6% of any types of revenue is paid, including non-operating income.
If an entrepreneur uses a scheme in which 15% of the difference between revenue and expenses is paid, then the formula is somewhat more complicated. In this case, the value of property received free of charge is added up with other types of revenue. Further, officially confirmed expenses are deducted from the received figure. Then the tax is calculated based on the rate of 15%.
If an organization receives property free of charge, then the assessment of the corresponding type of non-operating income is based on data at market prices for such assets. Provisions relevant to this procedure are prescribed in the Tax Code of the Russian Federation. In some cases, price information must be documented by the taxpayer (as an option when contacting independent experts for the purpose of conducting an assessment).
Contract structure
What should look like gratuitous contract transfer of property? A sample of its structure may look like this. Suppose we are talking about the transfer of property as part of a donation. In this case, the appropriate type of contract will be referred to as the “Donation Agreement”.
The preamble to the document is standard: the place of its signing, the date, as well as the names of organizations participating in the procedure for the gratuitous transfer of property.
The subject of the agreement can be reflected in the following wording: “An organization such and such accepts such and such property from the Sacrifice, which belong to it on such and such right” It can be noted that the donee subject accepts the property with gratitude, and also undertakes to use it for general useful purposes.
Next, you can determine the conditions for using the property. That is, we write the wording reflecting the fact that the donee party assumes the obligation to use the assets for such an purpose. You can specify the condition under which the recipient of the property must agree in writing with the donor new conditions for the use of the received resources, if the implementation of the initial conditions is complicated.
Under the terms of the contract, it is also possible to prescribe a provision according to which the organization in whose favor the property is transferred may at any time refuse to accept it until it is directly received, until the transfer of the relevant assets. In this case, as a rule, it is indicated that the organization refuses the donation in writing. As soon as the Donor receives the relevant document, the contract is considered terminated.
The next paragraph, which is usually present in contracts of the type in question, is the obligation of the donee to maintain the necessary separate accounting of transactions reflecting the use of the property received.
Such is the specificity that characterizes a typical contract for the gratuitous transfer of property, a sample of the structure of which we have examined. The rest of the corresponding type of agreement is quite similar to other types of civil law contracts - the details of the parties are registered, wording on force majeure, resolution of disputes are included, signatures are made.
The nuances of accounting
Consider how the gratuitous transfer of property is carried out in the aspect of accounting.Postings and other procedures - what can they look like when an organization concludes an appropriate type of transaction?
One of the most common reasons for the emergence of legal relations of the type in question in business is the transfer of fixed assets. If so, then for such transactions the organization must prepare accounting documents in one of the forms provided for by the accounting legislation. For example, these may be documents of the type No. ОС-1, which are approved by the State Statistics Committee.
The act of transferring property as part of a gratuitous transaction must be prepared, having, first of all, technical documentation for the object of the transaction, as well as information related, in fact, to accounting. For example, these may be revolutions in accordance with score 02. The property transfer certificate is drawn up in two copies, which are signed by the donor and the party receiving fixed assets.
The structure of the relevant document should include the following information:
- number, date of compilation;
- full name of the transferred property in accordance with the technical documentation;
- place of transfer of fixed assets;
- product inventory number;
- useful life property.
Other characteristics of the property, plant and equipment may also be indicated. In some cases, experts say, the act of transfer of property must include the conclusion of a commission created in the company that gives the property in order to control the correct disposal of the fixed assets. The structure should include the chief accountant of the organization and other materially responsible persons. The commission is formed on the basis of the order of the director of the company. As soon as the act of acceptance of transfer of property is signed, organizations can proceed to resolve issues that reflect, in fact, accounting. Consider the relevant aspect.
From the point of view of direct accounting, the organization that transferred the property may not accrue depreciation on the relevant assets from the next month after signing the contract. In order to reflect the fact of asset retirement in accounting, it is necessary to open, respectively, a sub-account on account 01 "The disposal of fixed assets." The debit must reflect the replacement cost of the property. For a loan - the amount of depreciation that accrues over the life of the property. It turns out that you need to make two postings.
In turn, the receiving party draws up the property on the debit of account 08. That is, on investments, thus, in non-current assets. As a rule, this correlates with making entries on the credit of account 98, as well as on sub-account 98-2, which sounds like “Gratuitous receipts”.
