On what grounds is a gift between commercial organizations invalid?

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.

Transferring a gift to an individual

A gift agreement made from a legal entity in favor of a citizen will be completely legal, regardless of the direction of activity and the statutory goals of the organization. Yes, legal. a person can transfer any type of property in favor of an individual. persons under a gift agreement, if such an agreement is gratuitous in nature and does not provide for reciprocal obligations or representations on the part of the donee citizen (Article 572 of the Civil Code). Otherwise, the deed of gift should be considered feigned, which entails its insignificance (Article 170 of the Civil Code)

Attention

According to paragraph 2

Art. 574 GK

, if the value of a gift from an organization in favor of a citizen exceeds 3 thousand rubles, the gift agreement must be drawn up in

writing

. Violation of this rule entails

insignificance

transactions.

What's interesting is Art. 161 of the Civil Code, requires the conclusion of a written agreement in each case of transactions by a legal entity.

According to paragraphs 2, 3 of Art. 575 of the Civil Code, legal entities cannot make gifts in favor of citizens in state and municipal service, as well as in favor of employees of educational, medical and other social institutions.

If the donee citizen is incapacitated due to age or a court decision, then in a transaction of donation from a legal entity, his interests must be represented by his legal representative (parent, guardian) (Articles 28, 29 of the Civil Code). Participation in a transaction by a minor citizen is permissible with the written consent of his legal representatives (Article 26 of the Civil Code).

As a general rule, income received by citizens in kind or in cash as a gift (except for real estate, vehicles, stocks, shares and shares) is exempt from taxation. However, such an exemption applies if the donor is an individual (clause 18.1 of Article 217 of the Tax Code). Thus, if a citizen receives a gift from an organization, he has the obligation to pay 13% personal income tax on the market value of property exceeding 4 thousand rubles (clause 28 of article 217 of the Tax Code).

Notarization of deed of gift between legal entities. person and citizen is not obligatory, but may well be carried out at their request. Certification of the contract will make it possible to verify the legality of the transaction and whether the parties have the rights to complete it (Article 163 of the Civil Code).

It is difficult to build gratuitous relationships between organizations, so the gift agreement has more prohibitions than workarounds. Otherwise, transactions are carried out according to the legal principle. person – an individual. Russian legislation does not restrict entrepreneurs from transferring property rights. The only condition is to carry out gift relationships within the framework of the articles of the Civil Code of the Russian Federation.

The subject of a gift agreement can be any object. The list of transferred property benefits is voluminous, but must be presented. Legal entities have the right to donate the following objects to citizens:

1. Real estate (non-residential premises, land plots).
2. Equipment (any type from tools to machines).
3. Vehicle.
4. Financial investments (money, shares).
5. Other valuable benefits.

The subject of a gift agreement cannot be:

1. Weapons and military equipment.
2. Some types of natural resources.
3. Toxic substances.
4. Relics and museum exhibits.

The value of a gift, from the point of view of criminal law, does not matter, unlike a gift presented to a legal entity. Its price range is limited to the upper limit - 3,000 rubles.

A gift agreement is not always drawn up when an organization transfers property to an ordinary citizen. This option is used during a transaction if the cost of the item is less than three thousand. In other situations, proceed according to the established protocol:

• the legal entity draws up the text of the deed of gift;
• transferred to the donee;
• an individual pays a tax fee;
• if necessary, the citizen goes through the procedure of re-registration of the property.

An agreement of assignment or assignment of rights of claim is regularly used as an analogue of a gift agreement. The purpose of the transaction is also to transfer rights free of charge. This is a fake scheme that organizations use. The donor puts forward demands for a specific object, and the other party transfers it free of charge.

Regular readers of our column about deed of gift samples probably know that legal entities, according to current legislation, have the right to enter into any agreements and include in them all conditions that are not prohibited by law. Thus, organizations (their representatives) can enter into gratuitous gift agreements both with individuals and among themselves.

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At the same time, in certain situations, these persons are limited by law in the right to conclude such agreements, and sometimes such transactions are not available to them at all. The listed measures depend only on the specific conditions of concluding contracts and the situation in general.

According to the information set out in Article 572 of the Civil Code of the Russian Federation, one of the main conditions of the gift agreement is its complete gratuitousness, which excludes the formation, during the conclusion of the transaction, of any counter-property obligations or conditions in relation to the donee.

However, according to Article 50 of the Civil Code of the Russian Federation, legal entities that base their own activities on making a profit act as commercial organizations, which may influence the procedure and conditions for concluding deeds of gift.

At the same time, according to Article 251 of the Tax Code of the Russian Federation, income that was received free of charge by a subsidiary from the parent is exempt from taxation (the same rule also applies in the opposite direction, when the parent organization receives profit from the subsidiary), which is in fact prohibited by the provisions in paragraph 4 of article 575 of the Civil Code of the Russian Federation.

Thus, after concluding a deed of gift, any interested person has the legal right to challenge it in court, and in most cases of such appeals, the court recognizes the transaction as invalid due to its sham, which is provided for in paragraph 2 of article 170 of the Civil Code of the Russian Federation. It is worth noting that in attempts to resolve such disputes, the court, first of all, analyzes the true intentions of the donor and the donee, trying to find facts about the remuneration of the transaction.

Donation agreement - instead of a deed of gift
As a result of recognizing a transaction between commercial organizations as sham, as a rule, so-called bilateral restitution is applied to such a deed of gift. Simply put, each of the parties involved in the donation is obliged to return within a specified period everything that was received as a result of the transaction (Article 167 of the Civil Code).

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It is worth noting that the actual transfer of property benefits from one commercial organization to another is not always considered a gift. For example, as an exception, we can single out a situation where a legal entity makes a contribution to the authorized capital of another commercial organization, excluding the factor of gratuitousness of the gift. In this case, his compensation is formed not from the provisions of the transaction, but from the very content of the established corporate relations.

Also, it is worth noting that the ban on issuing a deed of gift is established only if commercial organizations are involved in the transaction as both parties, and a gift agreement between a legal entity and an individual is a common occurrence in corporate ethics (for example, an employer giving a gift to an employee) .

OO Vityaz and OJSC Domsvyaz executed a deed of gift, according to the content of which the joint-stock company undertook to transfer non-residential technical premises to Domsvyaz free of charge, after which the shareholder of Vityaz filed a lawsuit to declare the transaction invalid, motivating its position by the fact that that in the premises transferred under the donation agreement, the donee organized the sale of construction tools.

According to the plaintiff, all this was done to make a profit, which already constitutes a commercial activity and violates paragraph 4 of Article 575 of the Civil Code, which excludes donations (even if initially gratuitous) between commercial organizations.

However, the representative of Domsvyaz, speaking before the court and the plaintiff, hastened to explain that, according to paragraph 4, paragraph 50 of Article of the Civil Code of the Russian Federation, a non-profit organization, as which the PA functions, has the legal right to engage in activities for the purpose of generating income, which was reflected in the Charter of the organization itself.

After considering the situation and due to the absence of any restrictions regarding the use of the donated technical premises, the judge sided with the defendant, refusing to satisfy the plaintiff’s claim.

However, in cases where legal entities are not subject to the prohibitions and restrictions established by the current legislation of the Russian Federation, they can act as a donor and donee, concluding a deed of gift (in accordance with Article 572 of the Civil Code) and transferring/accepting property benefits free of charge.

At the same time, in accordance with the norms set out in Article 161 of the Civil Code of the Russian Federation, all transactions concluded by legal entities must be formalized in writing, regardless of their value.

Also, if a legal entity has indicated a desire to donate goods that are under its economic control or operational management, the transaction can be formalized only after the written consent of the owner of the donated property (clause 1,576, article of the Civil Code of the Russian Federation). This restriction does not apply to transactions and objects of small value.

Rights and obligations of the parties

3.1. The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the Agreement is considered terminated. Refusal of a gift must be made in writing.

3.2. The Donor has the right to demand compensation for actual damage caused by the Donee’s refusal to accept property as a gift.

(Clause 3.3 is included if real estate is transferred under the Agreement.)

3.3. The burden of maintaining the property (including current and major repairs), as well as the risk of its accidental destruction, is borne by the Donee from the moment of transfer of the property under the Property Acceptance and Transfer Certificate.

Is donation allowed between legal entities?

Russian legislation gives an unambiguous answer to the question posed: a gift agreement cannot be concluded between organizations. In some cases, this type of transaction is allowed. The status of the organization influences the adoption of a positive decision:

• a commercial;
• non-profit.

Each type of transaction has characteristic legal features.

The situation can be aggravated by a judicial authority that recognizes a gift agreement between commercial structures as illegal, in accordance with Article 575 of the Civil Code, since such transactions affect a financial issue. A simple transfer of property rights will certainly be declared invalid by the court. In some circumstances, it is still possible to give a gift, but there is always a risk.

1. Financial investments. The contribution of material goods to business development with subsequent return and income generation. It is difficult to attribute this popular form of gifting used by commercial organizations to the lack of a gratuitous purpose.
2. Unequal conditions when making a transaction. A common manipulation: the transferring organization dictates the terms, and the company receiving the material benefits as a gift responds by transferring an unequal investment. Legal practice shows the inconsistency of such transactions, which are often annulled.
3. Transfer of financial benefits to a subsidiary. This veiled method works exclusively within large enterprises. The procedure for carrying out a deed of gift according to the law requires compliance with nuances. For example, a “mother” must have obligations to her “daughter” that will form the basis for the transfer of material benefits.

False schemes exist due to the ambiguous understanding of the term.

It is generally difficult to imagine such an option for transferring a gift. This is due to the fact that the functioning of non-profit organizations is possible exclusively with funds received as a result of donation campaigns, which cannot be formalized without the conclusion of an appropriate agreement. A typical example of a gift here is possible if the transferred property or benefit belongs to the same company.

Transactions substituting a gift

Today, the following examples of transactions recognized as illegal by a court decision are known:

• The case of the irrevocable transfer of part of the charter capital to another legal entity was recognized by a court decision as a donation, which resulted in the nullity of the transaction.

• 
  According to the assignment agreement, the transaction will be considered illegal if the amount of payment for the transferred powers is much lower than their market price.

• A purchase and sale transaction is considered illegal if the text of the agreement contains a clause requiring payment for the transferred property before formalizing the contractual relationship. At the same time, there is no payment itself, which proves that economic entities are not going to carry out mutual settlements.
• The transaction of assignment of powers and obligations when signing an agreement to lease a land plot was declared illegal due to the fact that the transfer was free of charge.
• Under the purchase and sale agreement, the affiliated entities failed to fulfill their obligations under the contract after receiving the property. In this regard, the court recognized actions covering up the donation.

Transferring a gift to an individual

Is it worth it?
The organization representing the donor's side must take into account the current prohibitions and restrictions relating to such transactions. For example, according to paragraphs 2 and 3 575 of Article 575 of the Civil Code of the Russian Federation, it is prohibited to make donations in favor of employees of these institutions:

• municipal;
• social;
• medical;
• educational;
• state

As an exception to the rule, it is worth highlighting gift transactions with the participation of these persons, the value of the object of which does not exceed 3,000 Russian rubles.

The current legislative framework provides for the possibility of conducting both a preliminary gift agreement and a real one (Article 572 of the Civil Code). At the same time, when drawing up a consensual agreement, in addition to a clear definition of the donated object, the content of the deed of gift must record the will of the legal entity to transfer this object after completion of the transaction.

For example, the following cannot be given as a gift:

1. narcotic drugs,
2. Natural resources;
3. military equipment;
4. toxic substances;
5. weapons;
6. museum exhibits.

In addition, if a gift is accepted, a citizen is obliged to pay the corresponding personal income tax, which in 2021 amounts to 13% of the value of gifts, the price of which exceeded 4,000 Russian rubles, which were accepted by him during the year.

At the same time, only the amount of 4,000 rubles or more is subject to taxation, and not the entire amount. Simply put, if the total cost of gifts for the year does not exceed 4,000 rubles, no tax is paid.

According to Article 40 of the Tax Code of the Russian Federation, income tax is charged only on gifts, the real value of which has been documented or assessed by an independent expert competent to carry out such an assessment.

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.

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).

Attention

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.

Supporting documentation

Regardless of the receiving party, whether it is a legal entity or an ordinary citizen, the accepted property requires re-registration and cadastral registration. This is the only way it can be fully used.

There is a list of documents required to support a free transaction:

• a gift agreement or other agreement that replaces the fact of receiving a gift;
• act of acceptance and transfer or other protocol of acceptance of the item and placement on the balance sheet of the enterprise;
• invoice, which is the primary reporting documentation for the gratuitous transfer of goods.

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Sample deed of gift

There is no unified form of a gift agreement, but it must contain the following information:

• The name of the organizations between which the transaction is being carried out.
• FULL NAME. and passport data of enterprise representatives, on the basis of which they act.
• Subject of donation: apartment, car and other property indicating the market value (needed for calculating tax).
• When does the deed of gift come into force: after signing, on a certain date, etc.
• Under what conditions can the contract be cancelled, the cancellation procedure.

At the end, the signatures of the enterprise representatives and the date of conclusion are placed, after which the document is certified by a notary.

legal entities

Procedure for execution and registration of a transaction

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.

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.

Tax burden

Gift agreements are subject to taxation if the subject of the agreement is: motor vehicles, real estate, deposits or shares. The commission fee is 13% of the market value of the transferred object. The assessment is carried out additionally, and the amount of duty is not calculated from the value specified in the contract.

Transactions with individuals are subject to taxation. Things are somewhat different with organizations. There are two codes and they contradict each other. Article 251, paragraph 1, paragraph 11 of the Tax Code states that income tax does not apply to gratuitous income of legal entities received as a result of a mutually beneficial partnership with another corporate sector.

Since the gift received is considered income under tax law, it is subject to appropriate tax.

The amount of tax depends on the system that the donee uses, as well as on the value of the property donated. So, for example, if the donee is on the general taxation system, then he pays tax on non-operating income, and the donor pays VAT.

VAT is paid on the basis of paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation, since the donation is recognized as the sale of goods.

VAT is exempt when:

• property is donated by the founder, whose share of the authorized capital is 50% or more;
• donated funds are needed to ensure the safety of nuclear power plants;
• assets were obtained on the basis of international treaties of the Russian Federation;
• payments to charity;
• Donations of funds occur in any form.

The company acting as the donor cannot take into account the costs of the gift and its transfer when calculating income tax, thereby trying to reduce it. The donee legal entity takes into account the gift as non-operating income when calculating income tax, taking into account the market value of the property received.

There are situations when payment of tax is not required. This occurs when gifts are given from a parent company to a subsidiary, and the former must have at least ½ of the capital of the subsidiary.

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.

This is also important to know:
How to draw up a gift deed

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 by individual entrepreneurs (IP)

According to paragraph 1 of Art. 23 of the Civil Code, citizens have the right to engage in entrepreneurial activities without forming a legal entity in the status of an individual entrepreneur. According to paragraph 3 of Art. 23 of the Civil Code, the norms of civil legislation regulating the activities of commercial organizations are applied to the entrepreneurial activities of these entities.

However, if the donation was made by a person without reference to his legal status as an individual entrepreneur, the legal relationship did not imply the receipt of any profit, and the property received by the donee was not used by him in the framework of commercial activities, then such a donation will be completely legal.

If the donee is any other entity, then the individual entrepreneur can make a donation as a donor - a business entity. In this case, the norms of clause 2 of Art. will apply to the deed of gift. 574 of the Civil Code, requiring the drawing up of a written contract if the value of the gift exceeds 3 thousand rubles.

If an individual entrepreneur promises to give someone property and other benefits in the future, then according to clause 2 of Art. 572 of the Civil Code, such an agreement must contain a clearly expressed intention to transfer the gift. In this case, the agreement must also contain an indication of a specific gift.

Like any other donor, an individual entrepreneur cannot make a donation in favor of state and municipal employees, as well as workers in the educational, social and medical spheres (Article 575 of the Civil Code). The exception is gifts whose value does not exceed 3 thousand rubles.

If an individual entrepreneur made a donation of property at the expense of funds associated with his activities during the 6 months preceding bankruptcy, then at the request of an interested party (creditor), such a donation can be canceled by the court (Article 578 of the Civil Code). In case of cancellation of the donation, the donee is obliged to return the gift that has been preserved in kind, or to reimburse its cost in the manner prescribed by Art. 1105 Civil Code.

Example

IP Mamonov gave IP Prokhorov, who is his grandson, an apartment. Since there was a gift between grandfather and grandson, the donee Prokhorov was exempt from personal income tax. However, employees of the Federal Tax Service had a different opinion about this - as a result of a desk audit, they established that the object of the donation was used by the donee to store goods sold by him, which is why they considered that the donated property was used as part of entrepreneurial activity, and therefore, such a donation, according to paragraph. 4

Art. 575 GK

was prohibited. Based on this fact, the Federal Tax Service filed a lawsuit demanding that the deed of gift be declared invalid.

However, the court determined that the parties to the donation acted as close relatives, without reference to their legal status. The donee had no intentions to use the property for commercial purposes, and therefore, guided by the Determination of the Supreme Arbitration Court of the Russian Federation dated May 26, 2010 N VAS-6438/10, the Federal Tax Service rejected her claims.

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.

Gift to an employee (employee)

A donation in favor of an employee can be due to completely different motives - congratulations on a holiday, encouragement for work, financial assistance, etc. The specifics of making such a donation directly depend on this, affecting registration, tax and accounting, the need to pay insurance premiums, etc.

A gratuitous transfer of property in favor of an employee can be recognized as a donation and formalized by an appropriate agreement only if it is not related to his work activity. Then the employer can act as a donor, and the employee as a donee.

For your information

If the enrichment of an employee is related to his activities at the enterprise, including if this is indicated in the contract, then such incentives are nothing more than production bonuses, which, according to

Art. 129 TK

, is

part of his salary.

Since a donation in favor of an employee is always made on behalf of the employer - a legal entity, according to Art. 161 of the Civil Code, such a donation must be formalized in a written agreement. If there is a mass congratulation of employees, it is advisable to conclude a multilateral gift agreement (Article 154 of the Civil Code). In addition, gifts to employees must also be formalized by an appropriate order or directive from the manager and a statement on the issuance of gifts.

When receiving gifts from an employer, the recipient employee has a tax obligation to pay 13% personal income tax (or 30% if the employee is not a tax resident of the Russian Federation).

It is noteworthy that the tax is levied only on the amount that exceeds the cost of gifts of 4 thousand rubles, in total for the calendar year (clause 28 of article 217 of the Tax Code). Based on this, when receiving gifts from an employer during the year for an aggregate amount not exceeding 4 thousand rubles, the employee does not have a tax liability.

Since the employer is the tax agent of his employee, the responsibility for withholding income tax lies with him. So, if the gift is a monetary amount, then the employee receives it with tax deducted. If a gift is given in kind (TV, microwave oven, electric kettle), then personal income tax is withheld from the employee’s next salary payments.

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.