In Russia, a wonderful tradition has formed - to give a wide variety of gifts to loved ones, friends, and colleagues. It was always considered good form. No matter how surprising it may sound, the right to make pleasant surprises is regulated by law.
And therefore, when it comes to making a particularly valuable gift, you may have to make sure that this intention meets the criteria set forth in the regulatory legal acts of the Russian Federation.
Moreover, the Russian legislation provides for different types of donation agreements. The year 2014 was characterized by quite significant changes in the aspect of amendments to one of the key sources of law regulating civil legal relations - the Civil Code of the Russian Federation. Were any innovations recorded in it regarding the realization of the right of Russians to gift?
Characteristics of gift agreements
It can be noted that in 2014, there were no special innovations regarding the type of legal relationship under consideration by experts. In this sense, the provisions of the Civil Code of the Russian Federation were practically not modified, unlike, for example, those items that regulate the status of business companies - there, in turn, the reforms were sufficiently radical.
Before studying the types of donation contracts stipulated by Russian law, we will determine, in fact, the main characteristics of the corresponding legal category. What are the main features of this type of agreement? First of all, this is gratuitousness.
It is not assumed that the person being gifted owes something to the person who has shown generosity. The next sign of a gift agreement is a person’s consent to accept the corresponding value. Also, some experts attribute the property attribute to the characteristics of this type of agreement. What does it mean? The fact is that the value transferred from one entity to another is property, the volume of which decreases with the donor and simultaneously increases with the recipient.
What can be the subject of a gift agreement? According to the provisions of Article 572 of the Civil Code of the Russian Federation, this may be a certain tangible thing or, for example, the right to claim a certain property obligation.
Or the donor’s refusal from the intention to receive something from the person donated in earlier civil law transactions, which, from the point of view of the law, can be equated with gift.
Gift Taxation
An interesting fact is that any type of gift agreement forms the obligation of the recipient of the value to pay 13% tax on it. If only one subject of the relevant transaction does not account for another close relative. In this case, the tax rate is zero. In general, this practice is also observed in many other countries. True, taxes in this sense are not always as high as in Russia. So, for example, a contract of gift of real estate between relatives in Ukraine is also not subject to a fee, and if the subjects of the transaction are not related, then the corresponding rate will be 5%.
At the same time, in practice, tax collection from gifts is levied mainly in cases where the state in one way or another becomes aware that a person has received such and such value. As a rule, this applies to donation agreements subject to state registration. In particular, the Federal Tax Service quite actively “monitors” real estate transactions. Upon the conclusion by citizens of the relevant agreements, the department may send them requests to clarify the nature of the transactions, and if necessary, notify the person of the need to pay tax.
Classification of gift agreements
As some lawyers have noted, Russian legislation provides for several types of agreements, the subject of which is the transfer of values by one citizen to another without compensation. What are the types of gift agreement? Experts identify three main types of related transactions.
- Firstly, it is a standard gift agreement, classified as real. Its structure is extremely simple - it draws up a deal in which the donor actually transfers some property for use to another person. Moreover, as noted by lawyers, such an agreement, unlike most other civil law transactions, cannot be characterized by a liability in the aspect of legal relations. In addition, as experts say, the law does not explicitly state that the contract must be concluded in writing. Thus, it can be noted that the legislative regulation of ordinary donation transactions is limited by regulatory provisions.
- Secondly, it is a contract of promise of gift. It belongs, in turn, to the category of consensual. In turn, this type of agreement, as follows from Article 574 of the Civil Code of the Russian Federation, must be concluded in writing due to the need to fix binding provisions. The text of the relevant agreement should contain information about a particular citizen to whom the donor transfers value free of charge or exempts from some obligation.
- Thirdly, it is a donation agreement. The specificity of the corresponding type of legal transactions is that they are immediately regulated not only by the provisions of the Civil Code of the Russian Federation, but also by those contained in many other legislative sources. Such as, for example, the Federal Law “On Charity”, “On the Referendum”, and “On Political Parties”. Also, the regulatory legal acts governing this type of gift agreement have been adopted in many constituent entities of the Russian Federation.
Consider the indicated types of donation agreement in more detail.
Real deed of gift
An agreement on the gratuitous transfer of property by one citizen in favor of another, thus, can be classified as real. The main criterion here is that the contract is concluded upon the transfer of value. As we have already noted above, the law does not provide for the mandatory fixing of a transaction in writing.
The reasons for determining the moment of transfer of value may be different. For example, this may be the personal delivery of property, which forms the subject of the contract. This may be the transfer of symbolic elements - keys or, for example, a bank check, subject to subsequent cash out. Another option is that the person presented receives certain documents that confirm the legal right of claim transferred by the donor.
Do I need to sign a real deed of gift?
At the same time, options are possible in which a real gift contract must nevertheless be legally drawn up in writing. For example, this is the case when the donor is a legal entity, and the amount of property transferred is more than 5 minimum wages. Also with the participation of individuals, some species agreements (donating an apartment, for example) require written confirmation.
This is necessary by virtue of the subject matter of the relevant legal relations and relevant legal norms, which may become imperative in relation to provisions in the legislation governing issues of the transfer of property free of charge. Thus, any type of real estate gift agreement, including those whose subject is a share in the ownership of property, is subject to written execution.
An interesting fact is that when donating a car, on the one hand, the law does not require a written agreement. On the other hand, the corresponding procedure is extremely useful from the point of view of the subsequent registration of the vehicle with the new owner.
It can be noted - in the Civil Code of Ukraine it is said that the conclusion of gift contracts, the subject of which is movable property of special value, must be done in writing. By regulating certain types of donation agreements, Ukraine is somewhat more detailed in determining the subject of the relevant transactions.
Real contract: rights and obligations of the parties
Even if the donation contract is concluded orally, this does not exempt the signatories from fulfilling the obligations prescribed by law, and at the same time provides a number of rights. Consider the relevant aspect in more detail.
The primary responsibility of the donor is the transfer of values. If this is a material thing, product, then the fact of the fulfillment of the corresponding obligation will be its delivery. Among the most remarkable rights of the donor is that which is associated with the refusal of the intention to transfer his thing. True, to a greater extent it is relevant, as experts say, for consensual transactions that are recognized as legally significant, as we have already noted above, considering the main types of donation agreements, only in writing.
At the same time, the full realization of the right to refuse a transaction is possible only under certain conditions - for example, if at the time of the transaction the property position of the donor has noticeably worsened. Options are also possible with the return of the transferred thing to its former copyright holder. At the same time, it can be noted that, according to the provisions of Article 579 of the Civil Code of the Russian Federation, the donor cannot refuse his obligations to transfer the thing if it is a gift of low value.
The gifted citizen, likewise, has rights, and also in some cases duties. Consider them.
Actually, the gifted, first of all, has the right to receive things according to the agreement with the donor. At the same time, he has the right to refuse to accept value. In turn, the duties of the giftee are generally absent. But they may arise. This may be due, for example, to subsequent encumbrances or restrictions regarding the use of property.
Above, considering the main types of donation agreements, we identified transactions related to donations, which are regulated by special legislation. In many cases, by concluding them, the gifted agrees to use the property transferred under the donation agreement for a fairly narrow range of purposes. For example, only on the territory of the institution in whose favor a particular value was transferred.
Gift Promise Contract
We have identified, having considered above the types of the gift agreement provided for by the laws of the Russian Federation, real gift and the promise of gift in the future, that is, consensual transactions. We also study their features. One of the key signs of a consensual gift agreement we have already noted is the obligation of the parties to conclude a written agreement. Otherwise, it is recognized legally void.
You can also consider an aspect relating to the material terms of the type of contract in question. First of all, these include provisions reflecting the donor’s unequivocal intention to transfer property free of charge in favor of another subject of legal relations (or provide him with other preferences). Among other essential terms of the contract is an indication of specific persons, as well as characteristics of the subject of donation.
We noted above that a consensual contract can be canceled due to significant circumstances, such as, for example, a deterioration in the property status of the donor. Some lawyers believe that the obligations of the entity who promised the transfer of property can be canceled if the agreement contains clauses providing for conditions for the practical implementation of the contract. Argument - the provisions contained in the 157th chapter of the Civil Code of the Russian Federation.
Donation agreement
The criteria that distinguish between the types of donation agreements considered by us above - real donation and the promise of donation, can be supplemented by others, which allows us to distinguish the corresponding transactions into categories characterized by pronounced isolation. So, for example, we have identified donations related transactions as a separate category. What is their specificity? As we have already noted above, such agreements are regulated by several legal acts at once. The main feature that allows you to distinguish other types of gift agreements in civil law from the one in question is the transfer of things for general useful purposes.
Also, it can be noted that according to the provisions of Article 582 of the Civil Code of the Russian Federation, a donation can be made in favor of the state and other subjects of civil legal relations indicated in the Civil Code. Thus, as some lawyers have noted, the endowed party is generally a government body, or an institution under its jurisdiction. That is, among the other most important criteria characterizing the donation agreement is the limited range of possible subjects for using the property received as a gift.
Another feature of the type of agreements under consideration, which determines that many other types of donation agreements differ from it, is the obligations of the donor related to the use of the received values for specific purposes only. As an option - only on the territory of the institution to which the property was donated. Also, donation agreements, for example, may contain provisions prohibiting the resale or leasing of received values.
It can also be noted that certain obligations arising in connection with the conclusion of donation agreements may arise with legal entities. This may be due, for example, to the need to comply with established accounting rules. So, in some cases, the organization is required to keep separate records of operations related to the use of property received as a gift through donation.
Gift Agreement: Consolidating Attributes
Having examined the concept and types of the gift agreement, we will study the features that allow us to combine the appropriate type of transaction, discussed above, into one general category. We noted that the differences between the real type of agreement and the consensual are significant. Many lawyers categorize donation agreements into a separate category of transactions due to the specifics of the regulatory legislation, although they may be a special case of real or consensual transactions. What unites all those types of agreements that we examined above into one category - the “gift agreement”?
Modern lawyers are actively exploring various types of gift contracts. A comparative analysis conducted by many experts shows that among the key signs of commonality of the corresponding type of transactions is gratuitousness. Regardless of whether to treat the contract as real or consensual, or to those that characterize the legal relationship as a donation, this criterion is always present. The concept and types of a gift agreement, almost all, are related to the fact that property or other preferences are transferred from one subject of legal relations in favor of another without regard to commercial and other conditions that imply any reciprocal action of the person being granted. A person, of course, can count on something in return, but such expectations are outside the legal field.
Who can not conclude a gift agreement
Having considered how the main types of the donation agreement (donation) are made and their distinguishing features, we can consider the nuance regarding the possible prohibition of concluding the corresponding type of transactions. In general, the law does not provide any restrictions for citizens to complete such transactions. At the same time, there are provisions in the legislation of the Russian Federation that specifically regulate how children can exercise their right to give.In accordance with the provisions of the 26th and 28th articles of the Civil Code of the Russian Federation, they cannot make such transactions that have the sign of an orientation towards obtaining some benefit - provided that the legal nature of such agreements requires the participation of notaries or state registration authorities. That is, children cannot receive, for example, an apartment.
